Mogilefsky v. Superior Court

Facts

The Fair Employment and Housing Act defines eleven unlawful employment practices, two of which framed this case. Subdivision (a) of Government Code section 12940 makes it unlawful for an employer, “because of the … sex of any person,” to “discriminate against the person in compensation or in terms, conditions or privileges of employment.” (Mogilefsky, supra, 20 Cal.App.4th at p. 1413, fn. 2.) Subdivision (h) — the provision on which this case turned — makes it unlawful for an employer or “any other person, because of … sex … to harass an employee or applicant,” and provides that “[l]oss of tangible job benefits shall not be necessary in order to establish harassment.” (Id. at p. 1413, fn. 3.) The primary distinction the court drew between the two is that a subdivision (a) plaintiff “must allege facts demonstrating that he or she was discriminated against ‘in compensation or in terms, conditions or privileges of employment,’” whereas a subdivision (h) plaintiff “need not allege loss of tangible job benefits.” (Id. at p. 1414.)

Petitioner Wayne Mogilefsky alleged in his first amended complaint that he was subjected to sexual harassment and discrimination by Michael Levy, his supervisor, during his employment as creative editor for the real parties in interest — Silver Pictures, Warner Brothers, and Joel Silver. (Mogilefsky, supra, 20 Cal.App.4th at p. 1412.) Levy was the president of Silver Pictures. (Ibid.)

The conduct alleged was graphic. On two occasions, Levy “demanded petitioner stay overnight in Levy’s hotel suite.” (Mogilefsky, supra, 20 Cal.App.4th at p. 1412.) On the first occasion, Levy allegedly “informed petitioner that he would receive more money if he cooperated, ordered petitioner to play a pornographic film on the VCR, made lewd and lascivious comments about the film, and asked petitioner how much he would charge to perform acts similar to those depicted in the film.” (Ibid.) The next morning, Levy “allegedly falsely implied to others that petitioner engaged in anal sex with him.” (Ibid.) On the second occasion, Levy allegedly referred to petitioner “in a profane and degrading manner,” inquired repeatedly into his private life and prior relationships, and, very early the next morning, “woke petitioner, requested him to take his clothes off, and told petitioner that he wanted to sleep next to him.” (Ibid.)

Crucially for the quid pro quo theory, petitioner alleged that he went to Levy’s hotel suite the second time “only after being informed by others that he had no choice in the matter, that attendance at the suite was mandatory, that another male employee had been fired for not going to Levy’s suite when ordered to do so, and that petitioner should consider the consequences before refusing.” (Mogilefsky, supra, 20 Cal.App.4th at p. 1412.) These acts were alleged to violate Government Code section 12940, including its prohibitions against discrimination on the basis of gender and against “making any sexual requests with an explicit or implicit quid pro quo consequence in the workplace.” (Ibid.)

Procedural history

This was a writ proceeding, and the procedural posture matters. Two sets of real parties in interest demurred to the first cause of action. Silver Pictures, Warner Brothers, and Joel Silver “generally demurred,” relying on Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420 for the proposition that “sexually suggestive remarks by one male to another with no physical touching did not constitute an unfair employment practice under Government Code section 12940.” (Mogilefsky, supra, 20 Cal.App.4th at pp. 1412–1413.) Levy filed a separate demurrer, asserting contradictory facts and arguing that even assuming the truth of the allegations, the complaint alleged only “‘sexually explicit jokes, comments and innuendoes [sic],’” which “could not state a cause of action for sexual harassment as a matter of law.” (Id. at p. 1412.)

The trial court “sustained the demurrers without leave to amend,” and its minute order stated tersely, “Not a sex harassment case[.]” (Mogilefsky, supra, 20 Cal.App.4th at p. 1413.) Petitioner then filed a motion for reconsideration supported by a proposed second amended complaint, adding allegations that the other defendants allowed Levy “to surround himself with ‘young, attractive males,’” that “employment decisions were made and job duties were assigned on the basis of Levy’s attraction to male employees,” and that “a hostile environment was created in which males were treated differentially from females.” (Ibid.) The trial court denied that motion as well. (Ibid.)

Petitioner sought a writ of mandate. Because the superior court was the named respondent, the employer-defendants appeared as real parties in interest; the respondent court itself made no appearance. The Court of Appeal reviewed the demurrer ruling de novo as a question of law and ultimately ordered issuance of a peremptory writ. (Mogilefsky, supra, 20 Cal.App.4th at pp. 1411, 1418–1419.) The other causes of action in petitioner’s pleading — intentional and negligent infliction of emotional distress, constructive discharge, and interference with business relations — were not at issue in the writ proceeding. (Id. at p. 1412, fn. 1.)

Issue

The court framed the question narrowly and at the outset: “The issue presented in this writ proceeding is whether same gender sexual harassment may be the basis of a cause of action for sexual harassment in violation of the Fair Employment and Housing Act.” (Mogilefsky, supra, 20 Cal.App.4th at p. 1411, citing Gov. Code, § 12940, subd. (h).) Folded into that question were two subsidiary issues: whether section 12940, subdivision (h), by its terms reaches harassment by a person of the same sex as the victim, and whether petitioner’s specific allegations — quid pro quo demands and a hostile environment toward males — were sufficient to state a cause of action. A fourth, procedural issue concerned whether the trial court erred in denying reconsideration when the proposed amended complaint stated a claim.

Holding

Reasoning

The two theories: quid pro quo and hostile environment. The court began by mapping the doctrine. “California case law recognizes two theories upon which sexual harassment may be alleged. The first is quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances. The second is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.” (Mogilefsky, supra, 20 Cal.App.4th at p. 1414, citing Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607.) Petitioner’s first amended complaint, the court found, “invoked both theories”: the allegation that he “would ‘receive more money on his writing deal if he came to the hotel suite’” sounded in quid pro quo, while the allegation of a hostile, sexually harassing environment that “disrupted petitioner’s ‘emotional tranquility in the workplace’” sounded in hostile environment. (Ibid.)

What a quid pro quo claim requires. The court then defined the quid pro quo theory in terms that map directly onto CACI No. 2520. “A cause of action for quid pro quo harassment involves the behavior most commonly regarded as sexual harassment, including, e.g., sexual propositions, unwarranted graphic discussion of sexual acts, and commentary on the employee’s body and the sexual uses to which it could be put.” (Mogilefsky, supra, 20 Cal.App.4th at pp. 1414–1415, citing Donald Schriver, Inc. v. Fair Employment & Housing Com. (1986) 220 Cal.App.3d 396, 405.) Pleading is undemanding: “To state a cause of action on this theory, is it sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances.” (Id. at p. 1415.) The hostile-environment theory, “[b]y contrast,” “need not allege any sexual advances whatsoever”; it is stated “where it is alleged that an employer created a hostile environment for an employee because of that employee’s sex.” (Ibid., citing Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347.) And the two “sometimes both be involved in the same case,” a hybrid in which “unwelcome sexual advances were sufficiently pervasive so as to also alter the conditions of employment.” (Ibid.)

Confronting Hart: conduct of a sexual nature is “because of sex.” The defense leaned heavily on Hart v. National Mortgage & Land Co., the only reported California case on same-sex harassment, where the court had affirmed summary judgment for the employer because the plaintiff did not show his male coworker harassed him “because of Hart’s sex.” (Mogilefsky, supra, 20 Cal.App.4th at pp. 1415–1416, quoting Hart, supra, 189 Cal.App.3d at p. 1426.) The court found Hart “of questionable value as a legal precedent,” calling its failure to engage the “undeniably sexual nature of the conduct” at issue “troublesome.” (Id. at p. 1415.) Its key move was to define “because of sex” by reference to the character of the conduct, not the motive of the harasser: “Such conduct, whether motivated by hostility or by sexual interest, is always ‘because of sex’ regardless of the sex of the victim.” (Ibid.) The court turned the defense’s own concession against it — the real parties admitted that had the plaintiff “been a woman, the conduct alleged in that case would ‘unquestionably have constituted sexual harassment’” — exposing a “double standard.” (Id. at p. 1416.) The court also confined Hart to its statutory footing: to the extent Hart turned on the lack of a showing as to terms or conditions of employment, “it rested upon subdivision (a) … not subdivision (h) on which the instant case is based.” (Ibid.)

Statutory construction: silence is not a limitation. The court found “no basis of support in the statutory language” for limiting protection to male-female harassment. (Mogilefsky, supra, 20 Cal.App.4th at p. 1416.) “Although the statute does not specify whether it prohibits ‘same gender’ harassment or ‘other gender’ harassment, no ambiguity is created by this omission. Common usage indicates that in the absence of a modifying adjective, the Legislature intended to prohibit sexual harassment in all cases.” (Ibid., citing State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, 239.) The court reinforced this reading with two external authorities entitled to weight: interpretations by the Fair Employment and Housing Commission, which had applied the statute to same-sex harassment and to which courts “accord great respect,” and the “weight of federal authority” under title VII, which it found “in accord.” (Id. at pp. 1416–1417 & fns. 4–5.)

Rejecting the “empowered majority” argument and Goluszek. The real parties argued that the Legislature “did not intend to ‘protect members of the empowered majority (men) from one another,’” drawing on Goluszek v. Smith (N.D.Ill. 1988) 697 F.Supp. 1452, which had held that harassment of a man in a male-dominated workplace was “not the type of conduct Congress intended to sanction.” (Mogilefsky, supra, 20 Cal.App.4th at pp. 1416–1417.) The court flatly refused to follow it: “We cannot agree. This is, as the court acknowledged, harassment ‘because of sex.’ A person subjected to such behavior in California is entitled to the protection provided by Government Code section 12940 regardless of whether he or she is otherwise ‘empowered.’” (Id. at p. 1417.) The court noted the “noticeable absence of any statutory analysis” in either Goluszek or Hart supporting an exclusion of same-gender harassment. (Id. at p. 1416, fn. 6.)

Disposing of the policy and free-speech objections. The court dispatched two further arguments. The defense’s warning that liability would “put the First Amendment right of free speech on the endangered species list” reflected “a superficial understanding of its protections,” since FEHA “proscribed conduct rather than pure speech.” (Mogilefsky, supra, 20 Cal.App.4th at pp. 1417–1418, citing People v. Hernandez (1991) 231 Cal.App.3d 1376, 1381.) The argument also rested on the “inaccurate factual assertion” that the only basis for the claim was “‘some sexually suggestive remarks allegedly made in private.’” (Id. at p. 1418.) And the court rejected the fear that recognizing the claim would force “an inquiry into the sexual orientation of the male supervisor,” explaining that “[t]he focus of a cause of action brought pursuant to Government Code section 12940 is whether the victim has been subjected to sexual harassment, not what motivated the harasser.” (Ibid.) The court was careful to add that it did not rest its decision “to any degree upon the sexual preference of the harassed employee,” distinguishing the rule that FEHA’s predecessor “‘did not contemplate discrimination against homosexuals.’” (Id. at p. 1418, fn. 7, quoting Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 490.)

Sufficiency and the reconsideration error. Applying the rule, the court held the alleged acts “sufficient to state a cause of action,” so the general demurrer should have been overruled. (Mogilefsky, supra, 20 Cal.App.4th at p. 1417.) It then reached the procedural error: a plaintiff “is entitled to submit a proposed amended complaint by way of a motion for reconsideration,” and where the amended pleading “states any cause of action, the trial court is obligated to vacate its order sustaining demurrers without leave to amend and make a different order granting leave to file an amended complaint.” (Id. at p. 1418, citing Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.) The opinion was unanimous; Justices Epstein and Vogel concurred without separate writing. (Id. at p. 1419.)

Significance

Mogilefsky is a foundational California authority for two propositions that practitioners now take for granted. First, it definitively established that FEHA’s harassment prohibition reaches same-gender conduct — years before the United States Supreme Court reached the parallel conclusion under title VII in Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75. By anchoring its holding in the statutory text and in the principle that sexual conduct “is always ‘because of sex’ regardless of the sex of the victim,” the court supplied a durable rationale that survived the later federal developments. (Mogilefsky, supra, 20 Cal.App.4th at p. 1415.) Second, the decision remains a clean, frequently cited statement of the quid pro quo / hostile-environment dichotomy and the hybrid that can combine them — the conceptual frame underlying CACI No. 2520. Its definition of quid pro quo harassment, requiring only that “a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances,” is a standard pleading benchmark. (Id. at p. 1415.) The decision also marks a deliberate break from Hart, which it confined and criticized, and a refusal to import the “anti-male environment” gloss of Goluszek into California law. Its limits should be kept in view: the case arose on demurrer and decided only the sufficiency of allegations, not their truth; and it expressly disclaimed any holding about the relevance of sexual orientation. (Id. at p. 1418 & fn. 7.)

Key quotes

“Such conduct, whether motivated by hostility or by sexual interest, is always ‘because of sex’ regardless of the sex of the victim.” (Mogilefsky, supra, 20 Cal.App.4th at p. 1415.)

“This is, as the court acknowledged, harassment ‘because of sex.’ A person subjected to such behavior in California is entitled to the protection provided by Government Code section 12940 regardless of whether he or she is otherwise ‘empowered.’” (Id. at p. 1417.)

“[A] cause of action for sexual harassment in violation of Government Code section 12940, subdivision (h) may be stated by a member of the same sex as the harasser, whether based on the quid pro quo theory or the hostile environment theory or a hybrid of both theories.” (Id. at p. 1417.)

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Practice pointer

Open questions

Decided on demurrer, the opinion leaves several questions for another day. The court resolved only that the allegations were “sufficient to state a cause of action” — it expressed no view on whether petitioner could prove them, and it noted that Levy had “asserted facts contradictory to those alleged.” (Mogilefsky, supra, 20 Cal.App.4th at pp. 1412, 1417.) The court also expressly reserved the role of the harasser’s orientation: it declined to “base [its] decision in this case to any degree upon the sexual preference of the harassed employee,” and noted but did not reconcile the older rule of Gay Law Students that FEHA’s predecessor “did not contemplate discrimination against homosexuals.” (Id. at p. 1418 & fn. 7.) Whether and how that line would later be redrawn was left open. Finally, the court flagged but did not decide the effect of a special demurrer and motion to strike filed below, the papers for which were “not … provided to this court,” observing only that if the special demurrer rested on the failure to allege harassment “because of petitioner’s sex,” denying leave to amend would have been an abuse of discretion. (Id. at p. 1418, fn. 8.)