Etter v. Veriflo Corp.

Facts

The California Fair Employment and Housing Act makes it an unlawful employment practice for an employer to harass an employee on the basis of race, among other protected grounds. (Gov. Code, § 12940, subd. (h).) Harassment includes “‘[v]erbal harassment, e.g., epithets, derogatory comments or slurs ….’” (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464, quoting Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1)(A).) To be actionable as a hostile work environment, the harassment must be “sufficiently severe or pervasive” to alter the conditions of the victim’s employment and create an abusive working environment. (Etter, supra, 67 Cal.App.4th at p. 463.)

The plaintiff, Robert Etter, Jr., then age 37, was hired on August 28, 1995, by Kelly Services, Inc., a temporary employment agency, and was assigned to work as a stockroom clerk at defendant Veriflo Corporation. (Etter, supra, 67 Cal.App.4th at p. 460.) Etter worked the swing shift — 2:30 to 11 p.m. — as did Anita Grigsby, another worker in the “stores department.” (Ibid.) Because Veriflo raised no appellate challenge to its vicarious liability for Grigsby’s conduct, the court did not address whether Grigsby was Etter’s supervisor. (Id. at p. 460, fn. 2.)

Etter testified that Grigsby subjected him to offensive racial comments during the six weeks he worked at Veriflo: she called him “boy” almost daily; called him “Buckwheat” between five and ten times; called him “Jemima” twice on one day; and called him “Stymie” — another character on The Little Rascals — once or twice. (Etter, supra, 67 Cal.App.4th at p. 460.) He further testified that Grigsby asked him why some Black people pronounce the word “ask” as “axe” and then ridiculed the pronunciation of other Black workers; told a joke about two Black girls; commented on the O.J. Simpson trial; and declared her dislike of going to Oakland because of the prevalence of violence by Blacks. (Id. at pp. 460–461.)

The record was sharply contested. Etter conceded that he never told Grigsby or her supervisor that he found the remarks offensive, and just a week before quitting he affirmed his interest in permanent employment at Veriflo. (Etter, supra, 67 Cal.App.4th at p. 461.) He did complain to Kelly Services, quitting Veriflo on October 12 — assertedly because of Grigsby’s harassment — and called Kelly Services to complain the next day. (Ibid.) Grigsby denied calling Etter “boy” instead of his name, conceding only that she used the expression “oh, boy,” which Etter did not find derogatory; she denied calling him “Jemima” or “Stymie,” and testified that the lone “Buckwheat” reference came when, in response to Etter’s talk of cutting his hair, she said, “Oh, don’t do that. You’ll look like Buckwheat,” at which “[p]laintiff laughed.” (Ibid.)

Co-worker testimony cut against Etter. Thomas Mason, another Black stockroom worker, never heard Grigsby address Etter as “boy” (only the collective “you boys,” which Mason did not find offensive) or call him “Buckwheat” or “Stymie,” and described the relationship between Grigsby and Etter as “friendly.” (Etter, supra, 67 Cal.App.4th at pp. 461–462.) Willie Evans recalled hearing the terms “boy,” “Buckwheat,” and “Stymie,” but had “no specific recollection of the episodes,” likewise described the relationship as “friendly,” and recalled that Grigsby used “Buckwheat” when “we were all kidding.” (Id. at p. 462.) Larry Williams recalled the term “boy” used once, collectively, and did not consider it discriminatory. (Ibid.) Grigsby’s supervisor believed, from observing the “friendly bantering” between them, that the charges were untrue. (Ibid.) In closing, defense counsel argued Etter’s testimony was false and that, even if some incidents occurred, they were “isolated episodes and were … not enough to constitute harassment.” (Ibid.)

Procedural history

Etter brought an action for damages under FEHA, alleging that he had been subjected to racial harassment and discrimination while working for Veriflo; he settled with codefendant Kelly Services, Inc. (Etter, supra, 67 Cal.App.4th at p. 460 & fn. 1.) A jury trial was held before Judge John F. Van de Poel, and the jury returned a unanimous verdict in favor of Veriflo, answering “no” to a special verdict question asking whether Etter had proved, among other things, that “a reasonable person of Plaintiff’s race” and Etter himself “found the racial conduct complained of to be sufficiently severe or pervasive to alter the conditions of … employment and create a hostile or abusive working environment.” (Id. at p. 460.)

Etter appealed, raising a single issue: whether the trial court erred in instructing the jury that “occasional, isolated, sporadic, or trivial” acts of racial harassment are not actionable. (Etter, supra, 67 Cal.App.4th at p. 459.) The Court of Appeal, First Appellate District, Division One, affirmed the judgment in a unanimous opinion by Justice Stein. (Ibid.) A petition for rehearing was denied November 16, 1998, with the opinion modified; the Supreme Court denied review on February 3, 1999, Justice Mosk being of the opinion that review should be granted. (Id. at p. 467.)

Issue

The appeal presented a single, tightly framed question. As the court put it, “the sole issue raised on appeal is whether the trial court erred in instructing the jury that ‘occasional, isolated, sporadic, or trivial’ acts of racial harassment are not actionable.” (Etter, supra, 67 Cal.App.4th at p. 459.) Etter’s specific contention was that the challenged language — which both parties agreed was drawn from Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590 — misstated the law by making “the determinative factor the frequency of the conduct,” a litmus test he argued had been invalidated by the United States Supreme Court in Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, which held that “no single factor” is required and that the “severe or pervasive” measure is not “mathematically precise.” (Etter, supra, 67 Cal.App.4th at p. 466.) Embedded in the appeal was a threshold doctrinal question of first impression: what legal standard governs a workplace racial-harassment claim under FEHA, a question no published California decision had yet resolved. (Id. at pp. 464–465.)

Holding

Reasoning

Federal law supplies a threshold of severity or pervasiveness, not a zero-tolerance rule. The court began with Title VII, which makes it unlawful to discriminate on the basis of race, and which the lower federal courts had long read to reach an employer that creates “a working environment heavily charged with ethnic or racial insult and ridicule.” (Etter, supra, 67 Cal.App.4th at p. 462, citing Rogers v. Equal Employment Opportunity Com’n (5th Cir. 1971) 454 F.2d 234, 238.) But not all harassing conduct is actionable: to state a claim, “the harassment must be ‘sufficiently severe or pervasive’ to alter the conditions of the victim’s employment and create an abusive working environment,” so that the “‘mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee’” does not violate Title VII. (Id. at p. 463, quoting Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67, and Rogers, supra, 454 F.2d at p. 238.) Drawing on Lopez v. S.B. Thomas, Inc. (2d Cir. 1987) 831 F.2d 1184, the court emphasized that “‘[m]ore than an episodic pattern of racial antipathy must be proven to obtain statutory relief.’” (Etter, supra, 67 Cal.App.4th at p. 463.)

The Harris factors measure hostility but do not displace the threshold. The court canvassed the Supreme Court’s recent harassment trilogy. From Harris v. Forklift Systems, Inc., supra, 510 U.S. 17, it drew the rule that the “‘severe or pervasive’” standard is not “a mathematically precise test” and that hostility is assessed by “‘looking at all the circumstances,’” including “‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” (Etter, supra, 67 Cal.App.4th at pp. 463–464.) From Faragher v. City of Boca Raton (1998) 524 U.S. 775, it drew the rule that “‘“simple teasing,” … offhand comments, and isolated incidents (unless extremely serious)’” are not actionable, and that the factors are meant to “‘filter out complaints attacking “the ordinary tribulations of the workplace.”’” (Etter, supra, 67 Cal.App.4th at pp. 463–464.) Synthesizing, the court “discern[ed] from these opinions that the ‘severe or pervasive’ standard establishes a threshold test,” under which “trivial (i.e., not severe) or occasional, sporadic, or isolated (i.e., not pervasive) incidents of verbal abuse are not actionable.” (Id. at p. 464.) That parenthetical gloss — equating “trivial” with the absence of severity and “occasional, sporadic, or isolated” with the absence of pervasiveness — became the analytical key to the whole opinion.

FEHA borrows the federal threshold, and Fisher supplies its criteria. Turning to state law, the court acknowledged that FEHA “differs from Title VII in that it explicitly prohibits an employer from harassing an employee on the basis of race, sex, or other specified grounds.” (Etter, supra, 67 Cal.App.4th at p. 464, citing Gov. Code, § 12940, subd. (h).) Yet, “despite the differences in statutory language, in light of the parallel antidiscriminatory objectives,” California courts interpret FEHA by reference to federal Title VII decisions. (Ibid.) Candidly noting that “although no California cases have directly addressed racial harassment in the workplace,” the court reasoned that California decisions had already “applied the federal threshold standard to claims of sexual harassment” and held FEHA violated only “when the harassment was ‘“sufficiently severe or pervasive to alter the conditions of the victim’s employment.”’” (Id. at pp. 464–465.) It then adopted, for racial harassment, the criteria from Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590 — the first reported California harassment decision under FEHA — including Fisher’s statement that “‘acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.’” (Etter, supra, 67 Cal.App.4th at p. 465.) Because the challenged instruction was lifted verbatim from Fisher, the appeal turned on whether Fisher’s formulation survived Harris.

Harris did not invalidate the “occasional, isolated, sporadic, or trivial” formulation. The court rejected Etter’s reading of Harris on three grounds. First, the “‘single factor’” language in Harris arose “in the context of rejecting a requirement that the plaintiff prove psychological injury,” not in the context of frequency. (Etter, supra, 67 Cal.App.4th at p. 466.) Second, the Harris factors “are virtually identical to the factors identified in Fisher,” so “[n]othing in Harris … undermines the authority of Fisher.” (Ibid.) Third, treating “frequency” as one of several factors “does not negate the principle articulated in Fisher that a hostile working environment requires more than occasional and isolated incidents of harassment”; indeed, Faragher confirmed that the factors exist “to ensure that … isolated incidents, such as the sporadic use of abusive language, will not be actionable.” (Id. at pp. 466–467.) The court buttressed the point by noting that the challenged Fisher formulation had been “cited with approval in recent California cases,” including Brown v. Smith (1997) 55 Cal.App.4th 767, 784–785, which had reversed for a trial court’s failure to define “severe and pervasive” in accordance with Fisher and Harris. (Etter, supra, 67 Cal.App.4th at p. 466, fn. 7.)

The instruction did not foreclose the single-severe-incident theory. The court engaged Etter’s remaining argument — that the instruction conflicted “with the principle that even a single incident of severe harassment may be sufficient,” a principle illustrated by cases such as Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1045 (violent sexual assault) and Vance v. Southern Bell Tel. and Tel. Co. (11th Cir. 1989) 863 F.2d 1503, 1510 (noose hung over employee’s work station). (Etter, supra, 67 Cal.App.4th at p. 467.) The court answered that the jury “was correctly informed that it must find ‘severe or pervasive’ harassment” — in the disjunctive — and that the instruction “advised the jury of the factors identified in Harris … including … whether the racial conduct was physically threatening or humiliating or merely an offensive utterance.” (Ibid.) Reading the parenthetical gloss back into the instruction, the court concluded that “[t]he challenged language that the acts must be more than occasional, isolated, sporadic (i.e., pervasive), or trivial (i.e., severe) was consistent with the legal standard.” (Ibid.) A single severe act, in other words, would clear the “trivial” hurdle on its own; the instruction did not demand frequency where severity sufficed.

A pointed disclaimer: no approval of the conduct, and no “zero tolerance.” The court closed by separating its legal holding from any endorsement of the conduct alleged. It “emphasize[d] that our approval of the jury instruction is in no way an approval of the hurtful and demeaning remarks allegedly made here,” adding that “[r]acial slurs have no place in the work environment or in any environment.” (Etter, supra, 67 Cal.App.4th at p. 467.) But, “[c]ontrary to plaintiff’s assertion … the law does not exhibit ‘zero tolerance’ for offensive words and conduct,” instead requiring the plaintiff “to meet a threshold standard of severity or pervasiveness.” (Ibid.) On that footing, and “under the state of the evidence here,” the instruction “was unquestionably relevant to the issue before the jury,” and the judgment was affirmed. (Ibid.)

Significance

Etter occupies a distinctive place in the doctrinal line: it is the published decision that openly extended California’s FEHA hostile-environment framework — built to that point on sexual-harassment cases like Fisher — to racial harassment, candidly acknowledging that “no California cases have directly addressed racial harassment in the workplace.” (Etter, supra, 67 Cal.App.4th at pp. 464–465.) Its enduring contribution is the holding that a FEHA racial-harassment plaintiff must clear the federal Title VII “severe or pervasive” threshold, measured by the Harris/Faragher totality-of-the-circumstances factors. (Id. at pp. 463–465.) Equally portable is the court’s parenthetical decoding of the disjunctive standard — “trivial (i.e., not severe)” and “occasional, sporadic, or isolated (i.e., not pervasive)” — which reconciles the apparently frequency-focused Fisher formulation with the rule that a single severe act may suffice. (Id. at pp. 464, 467.) The decision is, however, a defense-side anchor with real limits. It vindicated only the propriety of a particular instruction; it did not hold the conduct alleged non-actionable as a matter of law, and the court took pains to disclaim any approval of the remarks or any holding that the instruction was a “model.” (Id. at p. 467 & fn. 8.) Because Veriflo conceded vicarious liability for appellate purposes, Etter says nothing about employer liability standards for co-worker versus supervisor harassment under Burlington Industries, Inc. v. Ellerth. (Id. at p. 460, fn. 2.) The opinion has since been overtaken in part by the Legislature: the 2019 amendments to Government Code section 12923 declared that “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment” and disapproved authorities applying a more demanding standard — a development practitioners must weigh before leaning on Etter’s threshold language today.

Key quotes

“In summary, we discern from these opinions that the ‘severe or pervasive’ standard establishes a threshold test for assessing the offensive conduct. Under that standard, trivial (i.e., not severe) or occasional, sporadic, or isolated (i.e., not pervasive) incidents of verbal abuse are not actionable.” (Etter, supra, 67 Cal.App.4th at p. 464.)

“[A]lthough no California cases have directly addressed racial harassment in the workplace, the California courts have applied the federal threshold standard to claims of sexual harassment and held that FEHA is violated when the harassment was ‘“sufficiently severe or pervasive to alter the conditions of the victim’s employment.”’” (Id. at pp. 464–465.)

“Racial slurs have no place in the work environment or in any environment. Contrary to plaintiff’s assertion, however, the law does not exhibit ‘zero tolerance’ for offensive words and conduct. Rather, the law requires the plaintiff to meet a threshold standard of severity or pervasiveness.” (Id. at p. 467.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The opinion leaves several matters unresolved. Most explicitly, the court reserved the validity of the then-new pattern instruction: “We are aware that the new BAJI No. 12.05 identifies the Harris factors without mentioning that ‘occasional, isolated, sporadic, or trivial’ conduct is not actionable. Because that instruction is not before us, we express no opinion about it.” (Etter, supra, 67 Cal.App.4th at p. 467, fn. 8.) The court likewise stopped short of endorsing the instruction it approved, cautioning that it did “not suggest that the instruction given here was a model instruction, only that it was not erroneous.” (Ibid.) Because Veriflo conceded vicarious liability for purposes of appeal, the opinion leaves open the employer-liability framework for harassment by a co-worker as opposed to a supervisor, flagging but not deciding the questions raised by Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742. (Etter, supra, 67 Cal.App.4th at p. 460, fn. 2.) The court also noted, without resolving, that a related question — whether pervasive workplace racial slurs may be enjoined — was then pending before the California Supreme Court in Aguilar v. Avis Rent-a-Car System, Inc. (Id. at p. 465, fn. 5.) Finally, the opinion does not address how its threshold framework interacts with the later statutory direction of Government Code section 12923 — a question the Legislature, not the Etter court, would eventually answer.