California employment case index

The California Supreme Court held that a nonsupervisory coworker could not be held personally liable under FEHA for harassing a fellow employee: although former Government Code section 12940 prohibited “any … person” from harassing an employee, the statute as a whole reached only the employer's failure to take corrective action, not the coworker's underlying conduct. The court pointed the policy question to the Legislature — which responded the next year by adding Government Code section 12940, subdivision (j)(3), making individual employees personally liable for their own harassment and abrogating the holding.

A remedial injunction prohibiting an employer (and a supervisor adjudicated to have engaged in unlawful racial harassment) from continuing to use racial epithets in the workplace against the plaintiff employees is permissible and does not constitute an unconstitutional prior restraint, because it enjoins speech only…

In one of California's first published workplace racial-harassment decisions under FEHA, the Court of Appeal affirmed a defense verdict, holding that the trial court properly instructed jurors that “occasional, isolated, sporadic, or trivial” racial conduct is not actionable and importing the federal Title VII “severe or pervasive” threshold into state law.

In Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, the Second District affirmed a defense judgment, holding that a hostile-environment claim requires conduct that is both objectively and subjectively offensive, and that harassment directed at other employees is relevant only where the plaintiff was aware of it—conduct she neither witnessed nor knew about could not have altered the conditions of her own employment.

In Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, the U.S. Supreme Court held that an employer is vicariously liable under Title VII for a supervisor’s hostile-environment harassment of a subordinate, but where the harassment yields no tangible employment action the employer may raise the two-element Ellerth/Faragher affirmative defense. The Court demoted the “quid pro quo” and “hostile work environment” labels from liability tests to threshold proof categories and grounded employer liability in general agency principles.

An employer is vicariously liable for actionable hostile-environment harassment by a supervisor with authority over the employee. When no tangible employment action was taken, the employer may raise an affirmative defense (the Faragher/Ellerth defense): that it exercised reasonable care to prevent and promptly correct…

The Fifth District affirmed summary judgment and a $64,796.50 defense fee award against a correctional counselor whose gender-bias case rested on "perception" rather than proof — writing the evidentiary rulebook for MSJ oppositions: admissible, specific, personal-knowledge evidence (and record citations on appeal), or nothing.

In Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, the Court of Appeal affirmed a FEHA sexual-harassment verdict for a legal secretary against a partner and his international law firm, sustaining punitive damages under Civil Code section 3294. The court applied section 3294, subdivision (b)'s managing-agent and ratification requirements to hold the firm liable for the partner's harassment and upheld the punitive award against constitutional challenge.

The Court of Appeal affirmed judgment notwithstanding the verdict for the employer, holding that a jury finding of failure to take reasonable steps to prevent discrimination and harassment cannot stand where the same jury found, by special verdict, that no discrimination, harassment, or retaliation actually occurred. A failure-to-prevent claim is derivative: there must be an underlying actionable wrong to prevent.

Title VII’s prohibition of discrimination “because of sex” protects against same-sex sexual harassment; nothing in the statute bars a claim merely because the plaintiff and the harassers are of the same sex, so long as the conduct constitutes discrimination because of sex and meets Title VII’s other requirements.

The Court of Appeal affirmed judgment on the pleadings for a second-tier supervisor sued only for failing to act on a harassment complaint, holding that a nonharassing supervisor is not personally liable under FEHA — not as an aider and abettor of the harasser or employer, and not as the employer's agent — and distilling supervisor liability into three clear rules.

An aspiring actor alleged a casting director drugged and gang-raped him at the director's home. The Court of Appeal held the director could be treated as the network's agent, triggering FEHA strict liability rather than the negligence standard for coworkers, and that the off-site, off-hours assault was sufficiently work-related to be actionable — while affirming dismissal of the negligent-hiring claim.

Individual supervisors are not personally liable under the FEHA for discrimination, which arises out of the necessary personnel-management functions of the employer; by contrast, harassment — conduct outside the scope of necessary job performance and presumably engaged in for personal gratification or bias — can give…

In Proksel v. Gattis (1996) 41 Cal.App.4th 1626, the Court of Appeal held that an employer's favoritism toward a coworker with whom he is romantically involved does not, without more, give rise to a sex discrimination or sexual harassment claim under FEHA or California public policy — declining to make courts a generalized police power over consensual office relationships.

In a same-sex sexual-harassment action under FEHA, the trial court sustained the individual defendants' demurrers on the theory that only the employer can be liable. The Court of Appeal granted a writ of mandate, holding that 'persons' under Government Code section 12965 includes individuals, so a harassment claimant may sue the supervisors who personally participated in or aided and abetted the conduct. Harassment by a supervisor with hire-and-fire power is a particularly personal form of discrimination, distinct from hiring discrimination, for which the employer alone answers.

In Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, the Court of Appeal carried Harris v. Forklift Systems into California's FEHA, holding that harassment need not seriously affect a plaintiff's psychological well-being to be actionable. It confirmed that an employer is strictly liable in compensatory damages for a supervisor's harassment, but held that punitive damages run only through Civil Code section 3294's managing-agent test — which a supervisor with hiring-and-firing power, but no policymaking discretion, did not satisfy.

A male creative editor alleged that his male supervisor subjected him to quid pro quo and hostile-environment sexual harassment. Sustaining the complaint, the Court of Appeal held that FEHA’s prohibition on sexual harassment reaches same-gender conduct: the statute protects against harassment “because of sex” regardless of whether harasser and victim are of the same sex.

A unanimous Supreme Court held that Title VII hostile-environment harassment need not “seriously affect [an employee’s] psychological well-being” or cause tangible injury. Reaffirming Meritor, the Court adopted a “middle path” requiring conduct severe or pervasive enough to create an environment that both a reasonable person and the victim find abusive, judged on the totality of the circumstances.

The Court of Appeal affirmed a multimillion-dollar FEHA sexual-harassment judgment, holding that AT&T's concealment of the harasser's lost personnel file justified a willful-suppression instruction, and that sexual harassment is a personal injury supporting prejudgment interest. The decision is a leading authority on respondeat-superior liability for harassment and on the adverse inference from spoliated employment records.