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Harassment at Work: The Current Truth
MCLE Self Test

Harassment at Work: The Current Truth
By Daniel E. Eaton

Edited by Barbara Kate Repa

In recent years, and particularly in 2003, the Legislature and courts of California have acted to clarify and alter the law of sexual harassment and other types of harassment in employment. As a result, even the attentive practitioner may be woefully unaware of what currently constitutes harassment, when it is actionable, and who may be liable for it.

The Basics
The law recognizes two kinds of sexual harassment: quid pro quo and hostile environment. Quid pro quo harassment consists of explicitly or implicitly conditioning a job or promotion on an employee's acceptance of sexual conduct. (Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).) Hostile-environment sexual harassment is a bit trickier to prove. A person alleging it must show:
1. that he or she was subject to verbal or physical conduct that was of a sexual nature or that was directed at him or her because of gender,
2. the conduct was unwelcome,
3. the conduct was sufficiently severe or pervasive to alter the conditions of employment, and
4. the conduct created an abusive working environment from both a personal perspective and the perspective of a hypothetical person with the same fundamental characteristics. (Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995); Accardi v.Superior Court, 17 Cal. App. 4th 341 (1993).)

Though the state law prohibiting harassment on the job, the Fair Employment and Housing Act (FEHA) (Cal. Gov't Code §§ 12900-12996), generally applies to employers of five or more people, the protections of the statute's sexual harassment provisions apply to employers of one or more. (Compare Cal. Gov't Code § 12940(j)(4)(A) with § 12926(d)). By contrast, the protections of all of the provisions of Title VII are limited to employers of 15 or more. (28 U.S.C. § 2000e(b).) Also unlike the federal law, under the FEHA, California employers are strictly liable for sexual harassment by supervisors. (State Dep't of Health Serv. v. Superior Court, 31 Cal. 4th 1026 (2003).) As with Title VII, the federal antidiscrimination statute, California employers are liable under the FEHA for sexual harassment committed by coworkers only if they knew or should have known about it. (Cal. Gov't Code § 12940(j)(1).)

Both the state and federal antidiscrimination laws prohibit same-sex harassment. (Mogilefsky v. Superior Court, 20 Cal. App. 4th 1409 (1993); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).) And both the FEHA and Title VII as interpreted in California federal courts also prohibit the related but distinct form of harassment based on sexual orientation. (Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002); Cal. Gov't Code § 12940(j)(1).) Recent case law confirms that actionable sexual harassment can range from intermittent staring at a co-employee because of his or her gender to assault and battery to rape. (See Birschtein v. New United Motor Mfg., Inc., 92 Cal. App. 4th 994 (2001) (staring, after the harasser was disciplined for "overt acts of sexual harassment"); Sheffield v. Dep't of Social Serv., 109 Cal. App. 4th 153 (assault and battery because of gender); Little v. Windermere Relocation, Inc., 301 F. 3d 958 (9th Cir. 2001) (rape).)

Not Only Supervisors Are Liable
In Carrisales v. Dep't of Corrections (21 Cal. 4th 1132 (1999)), the California Supreme Court held that the FEHA did not impose individual liability on a nonsupervisory employee for individual acts of sexual harassment. The court reasoned that "the FEHA proscribes and provides remedies for unlawful employment practices. Under that law, harassment by a nonsupervisor is not an unlawful employment practice if the employer takes "immediate and corrective action when reasonably made aware of the conduct." (21 Cal. 4th at 1136.)

The California Legislature swiftly acted to reject the court's holding, adding language to the FEHA that makes any employee who engages in sexual harassment personally liable to the harassed worker. (Cal. Gov't Code § 12940(j)(3).) In McClung v. Employment Dev. Dep't (113 Cal. App. 4th 335 (2003)), the Third District Court of Appeal noted language in the amendment and its legislative history indicating that it was intended to be "declaratory of existing law," supporting the conclusion that it "merely clarifies the meaning of the prior statute." (113 Cal. App. 4th at 358, quoting Cal. Gov't Code § 12940(j)(2).)

Employers Are Liable for Harassment by a Nonemployee
Two courts of appeal recently held that the language and legislative history of the FEHA barred claims against an employer for sexual harassment committed by a nonemployee patron of the employer. (Salazar v. Diversified Paratransit, Inc., 103 Cal. App. 4th 131 (2002); Carter v. California Dep't of Veterans Affairs, 109 Cal. App. 4th 469 (2003).) Both courts acknowledged that the Ninth Circuit, relying on an EEOC statutory guideline, has held that Title VII does impose such liability on employers when the employer knows or should know of the harassment and fails to act to remedy it. (See Folkerson v. Circus Circus Enter., Inc., 107 F.3d 754, 755 (9th Cir. 1997), discussing EEOC guideline 29 C.F.R. § 1604.11(e).)

The Legislature again acted to reject what it considered a judicial misinterpretation of the antidiscrimination law and amended the FEHA to "clarify" that the statute did impose such liability. (Cal. Gov't Code § 12940(j)(1),(2).) That law became effective January 1, 2004, and applies on its face only to sexual harassment, as opposed to harassment based on other classifications such as age, race, or religion. On March 30, 2004, the Salazar court reversed itself, holding that AB 76 applies to claims existing when it was enacted. (Salazar v. Diversified Paratransit, Inc., 2004 DJDAR 3960.)

No Privacy Protections for Intimate Supervisors
Many employers have fraternization policies that either discourage or prohibit supervisors from having intimate relationships with their direct or indirect subordinates, at least without bringing it to the company's attention. Though running against the laws of human nature, the justifications given for these policies include limiting potential sexual harassment issues, avoiding the appearance of a conflict of interest, and avoiding the appearance of favoritism. However, the California constitutional right to privacy applies to all individuals. (Cal. Const. Art. 1, § 1.) Whether an employer could actually fire an employee who violated
a fraternization policy without violating that employee's right to privacy was, at best, unclear-until late last year.

In Barbee v. Household Auto. Fin. Corp., (113 Cal. App. 4th 525 (2003)), the Fourth District Court of Appeal held that an employer did not violate an employee's constitutional right to privacy when it fired a supervisor who failed to end a relationship with a subordinate after being confronted about it. Even if the supervisor had a legally protected privacy interest in pursuing an intimate relationship with a subordinate, the court held he did not have a reasonable expectation of privacy in engaging in such a relationship. The court relied on court rulings from California and elsewhere that "have approved of restrictions on intimate relationships between employees of an organization or entity where such relationships presented potential conflicts of interest within the organization." (113 Cal. App. 4th at 532.) The court also noted that the particular plaintiff had no reasonable expectation of privacy because the company policy, and at least one company official, put the supervisor on notice that such a relationship would raise at least a potential conflict of interest.

Thus, California courts will likely uphold the termination of at least supervisors who defy clear fraternization policies. The termination of the subordinate in such a scenario could, of course, give rise to a claim of sexual harassment or discrimination that fraternization policies in part are designed to prevent.

A Single Epithet Can Constitute Harassment
Practitioners and most courts have long understood that a single, isolated racial slur or sexually charged comment is insufficient to constitute actionable harassment. As recently as 2002 a California court of appeal concluded that a single incident of actionable harassment "must be severe in the extreme and generally must include either physical violence or the threat thereof." (Herberg v. California Inst. of the Arts, 101 Cal. App. 4th 142, 151 (2002); Salter v. Washington Township Health Care Dist., 260 F. Supp. 2d 919, 926 (N.D. Cal. 2003), granting summary judgment against racial harassment employee: "[A]llegations of only a few isolated and insufficiently severe remarks and incidents are simply insufficient to state a hostile environment claim.")

That principle proceeded from the notion that the antidiscrimination law "does not prohibit all verbal or physical harassment" but is limited to discriminatory harassment. (Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998).) Such a rule is also premised on the recently reaffirmed idea that "the FEHA's prohibitions are not a 'civility code' and are not designed to rid the workplace of vulgarity." (Sheffield v. Dep't of Social Serv., 109 Cal. App. 4th 153, 161 (2003).)

In Dee v. Vintage Petroleum, Inc. (106 Cal. App. 4th 30 (2003)), the Second District Court of Appeal held that a single racial slur, coupled with other incidents of general harassment, could constitute actionable harassment-at least when it is committed by a supervisor. According to the court: "A reasonable trier of fact could infer that the racial slur was not an isolated event because it explained [the supervisor's] motivation for creating an abusive working environment" for the plaintiff. (106 Cal. App. 4th at 37.)

At least one court of appeal in an unpublished decision has confined Dee to its facts. (Edwards v. Blue Shield of California, 2003 WL 1962850, upholding summary judgment of a disability discrimination claim.) If Dee is not narrowly confined to its facts in future published decisions, California may become the first state to interpret its antidiscrimination law to make all forms of harassment in employment actionable- whatever their motivation.

Timing of Harassment Is Everything, Too
Among other elements California courts consider in determining whether there is actionable hostile-environment sexual harassment is "the total number of days over which all the offensive conduct occurred." (Herberg v. California Inst. of the Arts, 101 Cal. App. 4th at 150.) In Herberg, the court of appeal upheld summary judgment of a hostile-environment claim because, among other things, the vulgar and sexually oriented depiction of the plaintiff had been publicly displayed for about 24 hours.

The same court that decided Herberg reversed summary judgment against an employee who had been subjected to unwanted sexual attention by a colleague for fewer than seven days-attention that ended with the pursuer violently attacking the employee. In Sheffield v. Los Angeles County Dep't of Social Serv. (109 Cal. App. 4th 153 (2003)), the employee repeatedly complained to her supervisor about a coworker's increasingly aggressive romantic advances. Three business days after the coworker had first expressed interest in the complaining employee and two days after the employee first complained to her supervisor, the pursuing coworker made a fist and slammed it into her palm and frowned when passing the employee in a hallway. The employee again complained to her supervisor, but the employer again did nothing. A 15-second physical assault occurred two days later in the office, after which the pursuing employee was fired.

The court held that the employee had stated a claim for hostile-environment sexual harassment even though the harassing conduct had occurred over a period of fewer than seven days. It rejected the employer's argument that "there was insufficient time for the conduct to have evolved into a hostile work environment" for the employee as a matter of law. (109 Cal. App. 4th at 163.) Instead, it noted: "[S]lamming the fist into the palm added an aspect of violence that could be found to have changed the conditions of Appellant's employment." The court also noted that "when violence or the threat of violence is added to the equation" of previously verbal harassment "a trier of fact could determine [the employee's] conditions of employment had been drastically changed and that she was in a hostile work environment." (109 Cal. App. 4th at 163-4.)

Thus, a brief period of harassment consisting of words or images alone is not actionable harassment, just as an isolated comment alone is not actionable. When combined with other misbehavior, whether generally offensive behavior as in Dee or an implied threat of violence as in Sheffield, a California court may impose liability on an employer that fails to act.

Failure to Use the Complaint Procedure May Not Bar a Claim
In two 1998 rulings the U.S. Supreme Court interpreted the federal antidiscrimination law to bar employer liability for harassment by supervisors in the absence of adverse action against the alleged harassed employee if:
1. the employer has taken reasonable steps to prevent and correct the harassment, and
2. the allegedly harassed employee failed
to take advantage of the company's internal antiharassment policies. (Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).)

This Ellerth/Faragher defense has been held inapplicable in the context of alleged harassment by co-employees when a negligence standard applies to employer liability. (See Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001).)

Last year the California Supreme Court limited that defense as it applies to actions brought under the state's antidiscrimination law, holding that under the avoidable consequences doctrine, an employee's damages for hostile-environment sexual harassment will be limited to the extent that:
1. the employer took reasonable steps to prevent and correct workplace sexual harassment,
2. the employee unreasonably failed to use the preventive and corrective measures that the employer provided, and
3. reasonable use of the employer's procedures would have prevented at least some of the harm the employee suffered. (State Dep't of Health Serv. v. Superior Court, 31 Cal. 4th 1026, 1044 (2003).)

The court added: "We emphasize that the defense affects damages, not liability. An employer that has exercised reasonable care nonetheless remains strictly liable for harm a sexually harassed employee could not have avoided through reasonable care." (31 Cal. 4th at 1045.) The court also warned that even this limited defense would not apply to an employer unless it had "appropriate" antiharassment policies and communicated "essential information" about the policies and implementing procedures to its employees. (31 Cal. 4th at 1045.)

Daniel E. Eaton is a member of the litigation department of Seltzer Caplan McMahon Vitek in San Diego.

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