California employment case index

In Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, the Third District reversed summary judgment for a hospital, holding a jury could find a national-origin and age hostile work environment where a supervisor repeatedly mocked older Filipino nurses’ accents, transferred the plaintiff to a unit she was untrained for, and falsely accused her of sleeping on the job. The supervisor’s animus was attributable to the employer under Government Code section 12926, subdivision (d).

In Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, a correctional officer who stutters proved that a supervisor mocked his speech impediment in front of others at least a dozen times over roughly two years, and a jury awarded $500,000 for FEHA disability harassment. The Court of Appeal affirmed the liability finding, reaffirming that harassment need only be severe OR pervasive — not both — and that because the conduct occurred on “more than one isolated occasion,” the plaintiff was not required to prove a physical assault or threat. On the employer's cross-appeal, the court reversed the trial court's order granting a new trial on damages, because the court failed to file the statement of reasons within the ten days Code of Civil Procedure section 657 requires, rendering the order a nullity.

In Meeks v. AutoZone, the Fourth District reversed defense verdicts in a FEHA sexual harassment case, holding that a cluster of evidentiary rulings cumulatively skewed a credibility contest against the plaintiff. The court drew a usable line under Evidence Code section 1106: a plaintiff’s sexually charged banter directed at the harasser is admissible under subdivision (b), but a privately posted photograph of her tattoo — never shared “with” the harasser — remains barred by subdivision (a). It also confirmed that a harasser puts his intent in issue, and opens the door to me-too evidence, simply by claiming he treated everyone the same.

Reversing a judgment of dismissal entered after a demurrer was sustained without leave to amend, the Court of Appeal held that a hotel housekeeper stated viable FEHA claims for sexual harassment by a nonemployee (Gov. Code, § 12940, subd. (j)(1)) and for failure to prevent harassment (id., subd. (k)) where she alleged she was assaulted on the employer's premises by a drunk trespasser the employer knew or should have known was wandering the property and aggressively propositioning other housekeepers. Whether the employer's response was adequate is a question of fact unsuitable for resolution on demurrer.

Government Code section 12965(b) governs both fee and cost awards in FEHA actions and makes them discretionary under the asymmetric Christiansburg standard: a prevailing plaintiff ordinarily recovers fees and costs, but a prevailing defendant may recover them only if the action was objectively frivolous, unreasonable,…

A massage therapist won a FEHA verdict against her spa employer for failing to prevent customer sexual harassment and sex discrimination — even though the same jury found the harassing conduct was not severe or pervasive and that she suffered no adverse employment action. The Court of Appeal reversed, holding that a claim under Government Code section 12940, subdivision (k) is wholly derivative: it cannot stand without an underlying, actionable FEHA violation. Sharpening Trujillo, the court held it is the absence of actionable harassment — not the lack of any harassing conduct — that defeats the prevention claim, and directed entry of judgment for the employer.

A franchisor is not ordinarily the employer of its franchisee’s employees and is not vicariously liable for a franchisee-supervisor’s harassment unless the franchisor has retained or assumed general control over the relevant day-to-day aspects of the franchisee’s employment practices; a comprehensive operating system…

In Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, a production worker who had obtained his job with a false Social Security number sued under FEHA for disability discrimination and retaliation; after litigation began, the employer discovered the fraud and won summary judgment on after-acquired-evidence and unclean-hands theories. The California Supreme Court reversed. It held that Senate Bill No. 1818 (Gov. Code § 7285; Civ. Code § 3339; Lab. Code § 1171.5) extends FEHA's remedies to workers “regardless of immigration status,” and that federal immigration law (IRCA, as read in Hoffman Plastic) does not preempt those state remedies except as to lost-pay damages for the period after the employer discovers the worker's ineligibility. Neither after-acquired evidence nor unclean hands is a complete defense; both bear on the remedy, not on liability.

In Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, the Court of Appeal affirmed summary judgment for the University and reaffirmed the FEHA line between discrimination and harassment: a supervisor’s personnel-management decisions — who attends an employee’s meetings, how they are run, and accusations of dishonesty or poor performance — are not harassment under Reno v. Baird and Janken, even if discriminatory; the few stray remarks the plaintiff cited were neither offensive nor pervasive. The court also held after-acquired expert evidence of no adverse consequences did not raise a triable issue on pretext.

In Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886, the Court of Appeal affirmed a defense verdict in an age-discrimination suit and held that an employer may put before the jury, on mitigation of damages, the employee’s failure to invoke the employer’s internal grievance procedure — extending the FEHA avoidable-consequences doctrine of State Dept. of Health Services v. Superior Court beyond the hostile-environment harassment context in which it arose.

A heterosexual male volunteer at a city water plant sued under FEHA for same-sex harassment by two supervisors. The First District reversed summary judgment for one supervisor — gifts, lunches, suggestive remarks, and pornographic images supported an inference of genuine sexual interest and pervasiveness — while affirming for the other. Finding sexual interest on the record, the court expressly declined to decide the effect of the new statute providing that harassing conduct “need not be motivated by sexual desire.”

A male oil-rig floorhand was relentlessly gay-baited, urinated on, and propositioned by his supervisors. The Court of Appeal held these sex-based attacks on his heterosexual identity were harassment because of sex under the FEHA — no proof of the harassers' sexual desire required — endorsing Singleton, rejecting Kelley, and holding that a special verdict rendered defective by a drafting typo is subject to harmless-error review.

The Supreme Court held 5-4 that an employee is a “supervisor” for Title VII vicarious-liability purposes only if empowered to take tangible employment actions — hire, fire, demote, promote, transfer, or discipline. An employee who merely directs daily work is a co-worker, so the employer is liable only for negligence. The decision does not govern California’s FEHA, which defines “supervisor” more broadly and imposes strict liability for supervisor harassment.

Neither Labor Code section 1194 nor section 218.5 authorizes an award of attorney fees to a party that prevails on a section 226.7 claim; such claims are not actions for the nonpayment of minimum wages or overtime (§1194) and are not the kind of nonpayment-of-wages action that triggers §218.5 fee-shifting, so each…

A Muslim engineer born in Pakistan raised triable claims that his employer was liable for a hostile work environment created by Indian coworkers. Because the harassers were nonsupervisory, liability turned on negligence — whether the employer knew or should have known and failed to take corrective action. The Court of Appeal granted a writ reversing summary adjudication of the national-origin and religion harassment claims.

After a Kern County jury returned a defense verdict, the Court of Appeal reversed, holding that “me-too” evidence of harassment of other women — even outside the plaintiff’s presence — is admissible under Evidence Code section 1101, subdivision (b), to prove discriminatory intent and motive, and that harassment “because of sex” requires bias against the plaintiff’s gender, not sexual desire.

A trial court has discretion to deny or reduce a FEHA fee award when the plaintiff’s recovery is modest and the case could have been litigated as a limited civil case; where the fees sought are grossly disproportionate to a minor recovery (here, the judgment could have been rendered in a limited civil case), the court…