Wrongful Termination Additional 4

Employer’s Failure to Prevent Harassment, Discrimination or Retaliation Wrongful Termination Additional

Employer’s Failure to Prevent Harassment, Discrimination, or Retaliation in California: Overview, Legal Consequences, and Potential Problems

Introduction:

California has robust employment laws in place to protect workers from harassment, discrimination, and retaliation in the workplace. Employers in the state have a legal duty to take reasonable steps to prevent and address such issues. Failure to do so can lead to severe legal consequences, including wrongful termination claims.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): California’s primary anti-discrimination law is the FEHA. It prohibits employment discrimination, harassment, and retaliation based on various protected characteristics, including race, gender, age, disability, and more.

B. Duty to Prevent: Under the FEHA, employers in California have a legal obligation to take all reasonable steps necessary to prevent and correct discriminatory and harassing conduct in the workplace. This includes implementing anti-discrimination and anti-harassment policies, conducting training, promptly investigating complaints, and taking appropriate corrective actions.

II. Legal Consequences:

A. Wrongful Termination Claims: When an employer fails to prevent harassment, discrimination, or retaliation and an employee is subjected to such conduct, the affected employee may have grounds for a wrongful termination claim. Wrongful termination claims typically assert that the employee was fired in violation of public policy or due to their status as a whistleblower or a protected characteristic.

B. Civil Liability: Employers can face significant civil liability if they fail to prevent workplace misconduct. This may result in monetary damages, including compensatory and punitive damages, as well as legal fees and court costs.

C. Administrative Actions: Regulatory agencies such as the California Department of Fair Employment and Housing (DFEH) can initiate investigations into allegations of an employer’s failure to prevent harassment, discrimination, or retaliation. Employers found in violation may face fines, penalties, and mandatory compliance measures.

III. Potential Problems:

A. Inadequate Policies and Training: Employers may encounter problems if their anti-discrimination and anti-harassment policies are insufficient or if they fail to provide adequate training to employees. Inadequate policies and training can weaken an employer’s defense in the event of a lawsuit.

B. Inconsistent Enforcement: If an employer fails to consistently enforce its anti-discrimination and anti-harassment policies, it may create an environment where misconduct is tolerated. This can lead to legal liability, even if policies are in place.

C. Retaliation Claims: An employer’s failure to prevent retaliation can result in additional legal consequences. Employees who report harassment, discrimination, or other illegal conduct and subsequently face adverse employment actions may bring retaliation claims.

IV. Examples:

1. Example of a Successful Wrongful Termination Claim: An employee reports ongoing racial harassment to their supervisor and HR. The employer fails to take any action to stop the harassment. The employee, unable to endure the hostile work environment any longer, resigns. In this case, the employee may have a strong wrongful termination claim based on constructive discharge due to the employer’s failure to prevent harassment.
2. Example of a Failed Anti-Harassment Training Program: An employer provides anti-harassment training to its employees but does so irregularly and without meaningful content. As a result, employees remain unaware of their rights and obligations. If a harassment incident occurs and the employer relies on its training program as a defense, it may be challenged successfully in court for inadequate prevention efforts.

Conclusion

In conclusion, California’s employment laws place a significant responsibility on employers to prevent harassment, discrimination, and retaliation in the workplace. Failure to do so can lead to severe legal consequences, including wrongful termination claims, civil liability, and administrative actions. To mitigate these risks, employers must establish robust policies, provide thorough training, consistently enforce policies, and promptly address complaints to create a workplace free from harassment and discrimination.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2527. Failure to Prevent Harassment, Discrimination, or Retaliation—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, § 12940(k))

[Name of plaintiff] claims that [name of defendant] failed to take all reasonable steps to prevent [harassment/discrimination/retaliation] [based on [describe protected status—e.g., race, gender, or age]]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [was an employee of [name of defendant]/ applied to [name of defendant] for a job/was a person providing services under a contract with [name of defendant]];
2. That [name of plaintiff] was subjected to [harassment/discrimination/retaliation] in the course of employment;
3. That [name of defendant] failed to take all reasonable steps to prevent the [harassment/discrimination/retaliation];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s failure to take all reasonable steps to prevent [harassment/discrimination/retaliation] was a substantial factor in causing [name of plaintiff]’s harm.

New June 2006; Revised April 2007, June 2013, December 2015

Directions for Use

Give this instruction after the appropriate instructions in this series on the underlying claim for discrimination, retaliation, or harassment if the employee also claims that the employer failed to prevent the conduct. (See Gov. Code, § 12940(k).) Read the bracketed language in the opening paragraph beginning with “based on” if the claim is for failure to prevent harassment or discrimination.

For guidance for a further instruction on what constitutes “reasonable steps,” see section 11019(b)(4) of Title 2 of the California Code of Regulations.

Sources and Authority

• Prevention of Discrimination and Harassment. Government Code section 12940(k).
• “The employer’s duty to prevent harassment and discrimination is affirmative and mandatory.” (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035 [127 Cal.Rptr.2d 285].)
• “Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate

corrective action that is reasonably calculated to (1) end the current harassment and (2) to deter future harassment. [Citation.] The employer’s obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) that permanent remedial steps be implemented by the employer to prevent future harassment………………………… ” (M.F. v. Pacific Pearl Hotel Management LLC

(2017) 16 Cal.App.5th 693, 701 [224 Cal.Rptr.3d 542].)

• “This section creates a tort that is made actionable by statute. ‘ “ ‘[T]he word “tort” means a civil wrong, other than a breach of contract, for which the law will provide a remedy in the form of an action for damages.’ ‘It is well settled the Legislature possesses a broad authority . . . to establish      tort causes of

action.’ Examples of statutory torts are plentiful in California law.” ’ Section 12960 et seq. provides procedures for the prevention and elimination of unlawful employment practices. In particular, section 12965, subdivision (a) authorizes the Department of Fair Employment and Housing (DFEH) to bring an accusation of an unlawful employment practice if conciliation efforts are unsuccessful, and section 12965, subdivision (b) creates a private right of action for damages for a complainant whose complaint is not pursued by the DFEH.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286 [73 Cal.Rptr.2d 596], internal citations omitted.)

• “With these rules in mind, we examine the section 12940 claim and finding with regard to whether the usual elements of a tort, enforceable by private plaintiffs, have been established: Defendants’ legal duty of care toward plaintiffs, breach of duty (a negligent act or omission), legal causation, and damages to the plaintiff.” (Trujillo, supra, 63 Cal.App.4th at pp. 286–287, internal citation omitted.)
• “[W]hether an employer sufficiently complied with its mandate to ‘take immediate and appropriate corrective action’ is a question of fact.” (M.F., supra, 16 Cal.App.5th at p. 703, internal citation omitted.)
• “[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k).” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314 [184

Cal.Rptr.3d 774].)

• “Also, there is a significant question of how there could be legal causation of any damages (either compensatory or punitive) from such a statutory violation, where the only jury finding was the failure to prevent actionable harassment or discrimination, which, however, did not occur.” (Trujillo, supra, 63 Cal.App.4th at p. 289.)
• “[T]he ‘Directions for Use’ to CACI No. 2527 (2015),……. states that the failure

to prevent instruction should be given ‘after the appropriate instructions in this series on the underlying claim for……………………………………… harassment if the employee also claims

that the employer failed to prevent the conduct.’ An instruction on the elements of an underlying sexual harassment claim would be unnecessary if the failure to take reasonable steps necessary to prevent a claim for harassment could be based

7

on harassing conduct that was not actionable harassment.” (Dickson, supra, 234 Cal.App.4th at p. 1317.)

• “In accordance with . . . the fundamental public policy of eliminating discrimination in the workplace under the FEHA, we conclude that retaliation is a form of discrimination actionable under [Gov. Code] section 12940, subdivision (k).” (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1240 [51 Cal.Rptr.3d 206], disapproved on other grounds in Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 [72 Cal.Rptr.3d 624, 177 P.3d 232].)
  • “[Defendant] suggests that a separate element in CACI No. 2527 requiring [plaintiff] to prove that the failure to prevent discrimination or retaliation was ‘a substantial factor in causing her harm’ is equivalent to the disputed element in the other CACI instructions requiring [plaintiff] to prove that her pregnancy- related leave was ‘a motivating reason’ for her discharge. However, the ‘substantial factor in causing harm’ element in CACI No. 2527 does not concern the causal relationship between the adverse employment action and the plaintiff’s protected status or activity. Rather, it concerns the causal relationship between the discriminatory or retaliatory conduct, if proven, and the plaintiff’s injury.” (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 480 [161 Cal.Rptr.3d 758].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1025, 1026

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment and Housing Act, ¶¶ 7:670–7:672 (The Rutter Group)

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.02[6], 41.80[1], 41.81[7] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g] (Matthew Bender)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Employer’s Failure to Prevent Harassment, Discrimination or Retaliation Wrongful Termination Additional

2528. Failure to Prevent Harassment by Nonemployee (Gov. Code,§ 12940(j))

[Name of plaintiff] claims that [name of defendant] failed to take reasonable steps to prevent harassment based on [his/her/nonbinary pronoun] [describe protected status, e.g., race, gender, or age] by a nonemployee. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [was an employee of [name of defendant]/ applied to [name of defendant] for a job/was an unpaid [intern/ volunteer] for [name of defendant]/was a person providing services under a contract with [name of defendant]];
2. That while in the course of employment, [name of plaintiff] was subjected to harassment based on [his/her/nonbinary pronoun] [e.g., race] by [name], who was not an employee of [name of defendant];
3. That [name of defendant] knew or should have known that the nonemployee’s conduct placed employees at risk of harassment;
4. That [name of defendant] failed to take immediate and appropriate [preventive/corrective] action;
5. That the ability to take [preventive/corrective] action was within the control of [name of defendant];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s failure to take immediate and appropriate steps to [prevent/put an end to] the harassment was a substantial factor in causing [name of plaintiff]’s harm.

New November 2018; Revised January 2019

Directions for Use

Give this instruction on a claim against the employer for failure to prevent harassment by a nonemployee. The FEHA protects not only employees, but also applicants, unpaid interns or volunteers, and persons providing services under a contract (element 1). (Gov. Code, § 12940(j)(1).) Modify references to employment in elements 2 and 3 as necessary if the plaintiff’s status is other than an employee. Note that unlike claims for failure to prevent acts of a co-employee (see Gov. Code,

§ 12940(k)), only harassment is covered. (Gov. Code, § 12940(j)(1).) If there is such a thing as discrimination or retaliation by a nonemployee, there is no employer duty to prevent it under the FEHA.8

The employer’s duty is to “take immediate and appropriate corrective action.” (Gov. Code § 12940(j)(1).) In contrast, for the employer’s failure to prevent acts of an employee, the duty is to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940(k).)

Whether the employer must prevent or later correct the harassing situation would seem to depend on the facts of the case. If the issue is to stop harassment from recurring after becoming aware of it, the employer’s duty would be to “correct” the problem. If the issue is to address a developing problem before the harassment occurs, the duty would be to “prevent” it. Choose the appropriate words in elements 4, 5, and 7 depending on the facts.

Sources and Authority

• Prevention of Harassment by a Nonemployee. Government Code section 12940(j)(1).
  • Prevention of Discrimination and Harassment. Government Code section 12940(k).
  • “The FEHA provides: ‘An employer may . . . be responsible for the acts of nonemployees, with respect to sexual harassment of employees . . . , where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered.’ . . . ’ A plaintiff cannot state a claim for failure to prevent harassment unless the plaintiff first states a claim for harassment.” (M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 700-701 [224 Cal.Rptr.3d 542].)
  • “Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate corrective action that is reasonably calculated to (1) end the current harassment and (2) to deter future harassment. [Citation.] The employer’s obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) that permanent remedial steps be implemented by the employer to prevent future harassment . . . .” (M.F., supra, 16 Cal.App.5th at p. 701.)
  • “[T]he language of section 12940, subdivision (j)(1), does not limit its application to a particular fact pattern. Rather, the language of the statute provides for liability whenever an employer (1) knows or should know of sexual harassment by a nonemployee and (2) fails to take immediate and appropriate remedial action (3) within its control. (M.F., supra, 16 Cal.App.5th at p. 702.)
  • “[W]hether an employer sufficiently complied with its mandate to ‘take immediate and appropriate corrective action’ is a question of fact.” (M.F., supra, 16 Cal.App.5th at p. 703, internal citation omitted.)
  • “The more egregious the abuse and the more serious the threat of which the

employer has notice, the more the employer will be required under a standard of reasonable care to take steps for the protection of likely future victims.” (M.F., supra, 16 Cal.App.5th at p. 701.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 363, 370

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1019, 1028, 1035

Harassing Conduct- Wrongful Termination Additional

Harassing Conduct Defined

Harassing Conduct Defined

In California, employment law, particularly under the Fair Employment and Housing Act (FEHA), recognizes various forms of harassing conduct that can relate to wrongful termination.

Types of Harassing Conduct

1. Sexual Harassment: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. This includes quid pro quo harassment (where submission to such conduct is made a condition of employment) and creating a hostile work environment.
   • Example: A supervisor making continued advancements towards an employee, implying that their job security depends on their compliance. If the employee is terminated after rejecting such advances, it could be considered wrongful termination.
2. Racial Harassment: Derogatory comments, jokes, or slurs based on race or ethnicity. This also includes displaying racially offensive symbols.
   • Example: An employee consistently faces racial jokes and comments. Upon complaining or resisting such behavior, if they face termination, it would exemplify wrongful termination due to racial harassment.
3. Gender-Based Harassment: Discriminatory treatment or offensive comments based on gender, including gender identity and expression.
   • Example: Persistent derogatory remarks about an employee’s gender. If these remarks lead to an employee’s dismissal, either directly or through creating a hostile environment, it constitutes wrongful termination.
4. Disability Harassment: Mocking or belittling an individual because of their disability or perceived disability.
   • Example: An employee with a disability is constantly ridiculed about their condition. If they’re terminated, possibly under the guise of performance issues stemming from their disability, it could be seen as wrongful termination.
5. Age-Based Harassment: Negative comments or actions based on an employee’s age, particularly targeting older employees.
   • Example: Repeatedly making derogatory comments about an employee’s age, leading to their eventual termination, could be a case of wrongful termination related to age-based harassment.
6. Religious Harassment: Insults, derogatory comments, or unequal treatment based on religious beliefs or practices.
   • Example: An employee is harassed for wearing religious attire or for their religious practices. If they are terminated due to their complaints about this harassment, it could be wrongful termination.
7. Sexual Orientation Harassment: Harassment based on someone’s real or perceived sexual orientation.
   • Example: An employee faces derogatory comments about their sexual orientation and is later fired after raising concerns, suggesting wrongful termination.
8. Retaliation for Complaints: Targeting employees for participating in harassment investigations or for filing harassment complaints.
   • Example: An employee who reports harassment and then faces negative job consequences, culminating in termination, could be a victim of retaliatory wrongful termination.

Conclusion

In each of these examples, the key element is the link between the harassing conduct and the termination. Wrongful termination in the context of harassment is established when an employee’s termination is directly or indirectly a result of their response to, or the existence of, harassing behavior. This link can be challenging to prove but is central to such legal claims in California. Employers must be vigilant in preventing harassment and ensuring that termination decisions are not influenced by discriminatory factors. Employees, on the other hand, should be aware of their rights and the protections afforded to them under California law.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2523. “Harassing Conduct” Explained

Harassing conduct may include, but is not limited to, [any of the following:]

[a. Verbal harassment, such as obscene language, demeaning comments, slurs, [or] threats [or] [describe other form of verbal harassment];] [or]

[b. Physical harassment, such as unwanted touching, assault, or physical interference with normal work or movement;] [or]

[c. Visual harassment, such as offensive posters, objects, cartoons, or drawings;] [or]

[d.  Unwanted sexual advances;] [or]

[e. [Describe other form of harassment if appropriate, e.g., derogatory, unwanted, or offensive photographs, text messages, Internet postings].]

New September 2003; Revised December 2007, December 2015

Directions for Use

Read this instruction with CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant; CACI No. 2521B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Employer or Entity Defendant; CACI No. 2522A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant; or CACI No. 2522B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Individual Defendant. Read also CACI No. 2524, “Severe or Pervasive” Explained, if appropriate.

Sources and Authority

• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
• “Harassment” Defined. Cal. Code Regs., tit. 2, § 11019(b)(2).
• “Harassment is distinguishable from discrimination under the FEHA. ‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869 [172 Cal.Rptr.3d 732].)
• “[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of

necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.” (Reno v. Baird (1998) 18 Cal.4th 640, 645–646 [76 Cal.Rptr.2d 499, 957 P.2d 1333],

internal citations omitted.)

• “No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct.” (Serri, supra, 226 Cal.App.4th at p. 869.)
• “We conclude, therefore, that the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.” (Reno, supra, 18 Cal.4th at pp. 646–647, internal citation omitted.)
• “[W]e can discern no reason why an employee who is the victim of discrimination based on some official action of the employer cannot also be the victim of harassment by a supervisor for abusive messages that create a hostile working environment, and under the FEHA the employee would have two separate claims of injury.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707

[101 Cal.Rptr.3d 773, 219 P.3d 749].)

• “Here, [plaintiff]’s discrimination claim sought compensation for official employment actions that were motivated by improper bias. These discriminatory actions included not only the termination itself but also official employment actions that preceded the termination, such as the progressive disciplinary warnings and the decision to assign [plaintiff] to answer the office telephones during office parties. [Plaintiff]’s harassment claim, by contrast, sought compensation for hostile social interactions in the workplace that affected the workplace environment because of the offensive message they conveyed to [plaintiff]. These harassing actions included [supervisor]’s demeaning comments to [plaintiff] about her body odor and arm sores, [supervisor]’s refusal to respond to [plaintiff]’s greetings, [supervisor]’s demeaning facial expressions and gestures

toward [plaintiff], and [supervisor]’s disparate treatment of [plaintiff] in handing out small gifts. None of these events can fairly be characterized as an official employment action. None involved [supervisor]’s exercising the authority that [employer] had delegated to her so as to cause [employer], in its corporate capacity, to take some action with respect to [plaintiff]. Rather, these were events that were unrelated to [supervisor]’s managerial role, engaged in for her own purposes.” (Roby, supra, 47 Cal.4th at pp. 708–709, original italics, footnote omitted.)

• “[S]ome official employment actions done in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias. Here, some actions that [supervisor] took with respect to [plaintiff] are best characterized as official employment actions rather than hostile social interactions in the workplace, but they may have contributed to the hostile message that [supervisor] was expressing to [plaintiff] in other, more explicit ways. These would include [supervisor]’s shunning of [plaintiff] during staff meetings, [supervisor]’s belittling of [plaintiff]’s job, and [supervisor]’s reprimands of [plaintiff] in front of [plaintiff]’s coworkers. Moreover, acts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager were similarly motivated by discriminatory animus.” (Roby, supra, 47 Cal.4th at p. 709.)
  • “[A]busive conduct that is not facially sex specific can be grounds for a hostile environment sexual harassment claim if it is inflicted because of gender, i.e., if men and women are treated differently and the conduct is motivated by gender bias.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 130 [129 Cal.Rptr.3d 384], original italics.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:125–10:155 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and Other Harassment, §§ 3.13, 3.36

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.80[1][a][i] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)

California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson Reuters)

___________________

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Harassment by Supervisor- Wrongful Termination Additional

Harassment by a Supervisor

2525. Harassment—“Supervisor” Defined (Gov. Code, § 12926(t))

[Name of alleged harasser] was a supervisor of [name of defendant] if [he/ she/nonbinary pronoun] had any of the following:

1. The authority to hire, transfer, promote, assign, reward, discipline, [or] discharge [or] [insert other employment action] other employees [or effectively to recommend any of these actions];
2. The responsibility to act on other employees’ grievances [or effectively to recommend action on grievances]; or
3. The responsibility to direct other employees’ daily work activities.

[Name of alleged harasser]’s exercise of this authority or responsibility must not be merely routine or clerical, but must require the use of independent judgment.

New September 2003; Revised June 2006, December 2015, December 2022

Directions for Use

The FEHA’s definition of “supervisor” refers to the “authority” for factor (a) and the “responsibility” for factors (b) and (c). The difference, if any, between “authority” and “responsibility” as used in the statute is not clear. The FEHA’s definition of “supervisor” also expressly refers to authority and responsibility over “other employees.” (Gov. Code, § 12926(t).) The statute further requires that “the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” (See Gov. Code, § 12926(t), italics added.) However, at least one court has found the independent-judgment requirement to be applicable to the responsibility for factor (c). (See Chapman v. Enos (2004) 116 Cal.App.4th 920, 930−931 [10 Cal.Rptr.3d 852], italics added.) Therefore, the last sentence of the instruction refers to “authority or responsibility.”

Sources and Authority

• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
• “Supervisor” Defined. Government Code section 12926(t).
• “The FEHA imposes two standards of employer liability for sexual harassment, depending on whether the person engaging in the harassment is the victim’s supervisor or a nonsupervisory coemployee. The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action. This is a negligence standard. Because the FEHA imposes this negligence standard only for harassment ‘by an employee
•  

other than an agent or supervisor’ by implication the FEHA makes the employer strictly liable for harassment by a supervisor.” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040–1041 [6 Cal.Rptr. 3d 441, 79 P.3d 556], internal citations omitted.)

• “Unlike discrimination in hiring, the ultimate responsibility for which rests with the employer, sexual or other harassment perpetrated by a supervisor with the power to hire, fire and control the victimized employee’s working conditions is a particularly personal form of the type of discrimination which the Legislature sought to proscribe when it enacted the FEHA.” (Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 605–606 [40 Cal.Rptr.2d 350].)
• “This section has been interpreted to mean that the employer is strictly liable for the harassing actions of its supervisors and agents, but that the employer is only liable for harassment by a coworker if the employer knew or should have known of the conduct and failed to take immediate corrective action. Thus, characterizing the employment status of the harasser is very significant.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1046 [58 Cal.Rptr.2d 122], internal citations omitted.)
• “The case and statutory authority set forth three clear rules. First, . . . a supervisor who personally engages in sexually harassing conduct is personally liable under the FEHA. Second, . . . if the supervisor participates in the sexual harassment or substantially assists or encourages continued harassment, the supervisor is personally liable under the FEHA as an aider and abettor of the harasser. Third, under the FEHA, the employer is vicariously and strictly liable for sexual harassment by a supervisor.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1327 [58 Cal.Rptr.2d 308].)
• “[W]hile an employer’s liability under the [FEHA] for an act of sexual harassment committed by a supervisor or agent is broader than the liability created by the common law principle of respondeat superior, respondeat superior principles are nonetheless relevant in determining liability when, as here, the sexual harassment occurred away from the workplace and not during work hours.” (Doe, supra, 50 Cal.App.4th at pp. 1048–1049.)
• “The FEHA does not define ‘agent.’ Therefore, it is appropriate to consider general principles of agency law. An agent is one who represents a principal in dealings with third persons. An agent is a person authorized by the principal to conduct one or more transactions with one or more third persons and to exercise a degree of discretion in effecting the purpose of the principal. A supervising employee is an agent of the employer.” (Fiol, supra, 50 Cal.App.4th at p. 1328, internal citations omitted.)
• “A supervisor who, without more, fails to take action to prevent sexual harassment of an employee is not personally liable as an aider and abettor of the harasser, an aider and abettor of the employer or an agent of the employer.” (Fiol, supra, 50 Cal.App.4th at p. 1331.)
• “[W]hile full accountability and responsibility are certainly indicia of supervisory

power, they are not required elements of . . . the FEHA definition of supervisor. Indeed, many supervisors with responsibility to direct others using their independent judgment, and whose supervision of employees is not merely routine or clerical, would not meet these additional criteria though they would otherwise be within the ambit of the FEHA supervisor definition.” (Chapman, supra, 116 Cal.App.4th at p. 930, footnote omitted.)

• “Defendants take the position that the court’s modified instruction is, nonetheless, accurate because the phrase ‘responsibility to direct’ is the functional equivalent of being ‘fully accountable and responsible for the performance and work product of the employees… ’ In this, they rely on the

dictionary definition of ‘responsible’ as ‘marked by accountability.’ But as it relates to the issue before us, this definition is unhelpful for two reasons. First, one can be accountable for one’s own actions without being accountable for those of others. Second, the argument appears to ignore the plain language of the statute which itself defines the circumstances under which the exercise of the responsibility to direct will be considered supervisory, i.e., ‘if……………………………………………… [it] is not of a

merely routine or clerical nature, but requires the use of independent judgment.’ ” (Chapman, supra, 116 Cal.App.4th at pp. 930–931.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of Law Prohibiting Harassment, ¶ 10:17 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer Liability For Workplace Harassment, ¶¶ 10:308, 10:310, 10:315–10:317, 10:321, 10:322 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-E, Harasser’s Individual Liability, ¶ 10:499 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and Other Harassment, § 4.21

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.80 (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.20, 115.36, 115.54 (Matthew Bender) California Civil Practice: Employment Litigation § 2:56.50 (Thomson Reuters)

Harassment- Sexual Favoritism- Wrongful Termination Additional

Harassment- Sexual Favoritism

Sexual Favoritism- Harassment

Legal Framework in California

1. Definition of Sexual Favoritism: Sexual favoritism occurs when employees are treated more favorably based on their willingness to engage in sexual conduct with a supervisor or other person in power. This can be considered a form of sexual harassment under California law.
2. Relevant Legislation: The Fair Employment and Housing Act (FEHA) in California prohibits harassment and discrimination in the workplace. This law covers sexual favoritism and its implications.
3. Wrongful Termination: In California, while employment is generally “at-will,” terminations that violate public policy, including those stemming from sexual harassment or discrimination, are illegal.
4. Impact on Workplace Environment: Even if the favoritism does not lead directly to termination, it can create a hostile work environment, which is also prohibited under California law.

Potential Problems and Challenges

1. Proving Favoritism: Demonstrating that preferential treatment is based on sexual conduct can be difficult. It requires evidence that links the preferential treatment directly to sexual conduct.
2. Distinguishing Consensual Relationships: Distinguishing between a consensual relationship and sexual favoritism can be challenging. The key is whether the relationship affects employment decisions for other employees.
3. Retaliation: Employees who complain about sexual favoritism might face retaliation, including wrongful termination. Proving that the termination was retaliatory is a significant challenge.
4. Subtle Manifestations: Sexual favoritism can be subtle and not as overt as other forms of harassment, making it harder to identify and prove.

Examples

1. Example of Sexual Favoritism Leading to Termination: An employee who refuses the advances of a supervisor finds themselves being unfairly criticized, sidelined in important projects, and eventually terminated. This could be a case of wrongful termination linked to refusing to partake in sexual favoritism.
2. Promotions and Favoritism: An employee who is involved in a sexual relationship with a manager receives unwarranted promotions over more qualified colleagues. Other employees, feeling demoralized and discriminated against, could claim a hostile work environment.
3. Termination Following a Breakup: If an employee ends a sexual relationship with a supervisor and subsequently experiences negative employment consequences, culminating in termination, this could constitute wrongful termination stemming from sexual favoritism.

Conclusion

Sexual favoritism in the workplace can have serious legal consequences under California law, particularly when linked to wrongful termination. It can create an unequal and hostile work environment, leading to legal challenges for both employers and employees. Employers must be vigilant in preventing and addressing any form of sexual favoritism to avoid legal pitfalls. For employees, the challenge lies in proving that the favoritism has directly impacted their employment status, including any wrongful termination. Each case must be examined in detail, considering the nuances of the interactions, the evidence available, and the broader impact on the workplace environment.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2521C. Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was subjected to harassment based on sexual favoritism at [name of defendant] and that this harassment created a work environment that was hostile, intimidating, offensive, oppressive, or abusive. “Sexual favoritism” means that another employee has received preferential treatment with regard to promotion, work hours, assignments, or other significant employment benefits or opportunities because of a sexual relationship with an individual representative of the employer who was in a position to grant those preferences.

To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] was [an employee of/an applicant for a position with/a person providing services under a contract with/ an unpaid intern with/a volunteer with] [name of defendant];
2. That there was sexual favoritism in the work environment;
3. That the sexual favoritism was severe or pervasive;
4. That a reasonable [describe member of protected group, e.g., woman] in [name of plaintiff]’s circumstances would have considered the conduct to be hostile, intimidating, offensive, oppressive, or abusive because of the sexual favoritism;
5. That [name of plaintiff] considered the conduct to be hostile, intimidating, offensive, oppressive, or abusive because of the sexual favoritism;
6. [Select applicable basis of defendant’s liability:]

[That a supervisor [engaged in the conduct/created the sexual favoritism];]

[or]

[That [name of defendant] [or [his/her/nonbinary pronoun/its] supervisors or agents] knew or should have known of the sexual favoritism and failed to take immediate and appropriate corrective action;]

• That [name of plaintiff] was harmed; and
• That the conduct was a substantial factor in causing [name of plaintiff]’s harm.

Derived from former CACI No. 2521 December 2007; Revised December 2015, May 2018, July 2019, May 2020, November 2021

Directions for Use

This instruction is for use in a hostile work environment case involving sexual favoritism when the defendant is an employer or other entity covered by the FEHA. If the defendant is a labor organization, employment agency, apprenticeship training program or any training program leading to employment (rather than an employer), the instruction should be modified as appropriate. (See Gov. Code, § 12940(j)(1).) The relevant provision protects an employee, an applicant, an unpaid intern or volunteer, or a person providing services under a contract. (See ibid.) If the facts of the case support it, the instruction should be modified as appropriate for the applicant’s circumstances.

For an individual defendant, such as the alleged harasser or plaintiff’s coworker, see CACI No. 2522C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Individual Defendant. For a case in which the plaintiff is the target of harassment based on a protected status such as gender, race, or sexual orientation, see CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant.

For an instruction for use if the plaintiff is not the target of the harassment, see CACI No. 2521B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Employer or Entity Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.

In element 6, select the applicable basis of employer liability: (a) strict liability for a supervisor’s harassing conduct, or (b) the employer’s ratification of the conduct. For a definition of “supervisor,” see CACI No. 2525, Harassment—“Supervisor” Defined. If there are both employer and individual supervisor defendants (see CACI No. 2522C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Individual Defendant) and both are found liable, they are both jointly and severally liable for any damages. Comparative fault and Proposition 51 do not apply to the employer’s strict liability for supervisor harassment. (State Dep’t of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6 Cal.Rptr.3d 441, 79

P.3d 556]; see Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d 109, 863 P.2d 179];

see also Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847, 1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are without fault and only have vicarious liability by virtue of some statutory fiat].)

See also the Sources and Authority to CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant.

Sources and Authority

• Declaration of Legislative Intent With Regard to Application of the Laws About Harassment. Government Code section 12923.
• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Person Providing Services Under Contract. Government Code section 12940(j)(5).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Aiding and Abetting Fair Employment and Housing Act Violations. Government Code section 12940(i).
• Perception and Association. Government Code section 12926(o).
• “The elements [of a prima facie claim of hostile-environment sexual harassment] are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and

(5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote omitted.)

• “[T]he adjudicator’s inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff’s work performance. To show such interference, ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’ It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S. 17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J; see Gov. Code, § 12923(a) endorsing this language as reflective of California law.)
• “Following the guidance of the EEOC, and also employing standards adopted in our prior cases, we believe that an employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment.” (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 466 [30 Cal.Rptr.3d 797, 115 P.3d 77], internal citations omitted.)
• “[S]exual favoritism by a manager may be actionable when it leads employees to believe that ‘they [can] obtain favorable treatment from [the manager] if they became romantically involved with him’, the affair is conducted in a manner ‘so indiscreet as to create a hostile work environment,’ or the manager has engaged in ‘other pervasive conduct . . . which created a hostile work environment.’ ” (Miller, supra, 36 Cal.4th at p. 465, internal citations omitted.)
• “[A] romantic relationship between a supervisor and an employee does not, without more, give rise to a sexual discrimination or sexual harassment claim either under the FEHA or the public policy of the state.” (Proksel v. Gattis (1996) 41 Cal.App.4th 1626, 1631 [49 Cal.Rptr.2d 322].)
  • “The FEHA imposes two standards of employer liability for sexual harassment, depending on whether the person engaging in the harassment is the victim’s supervisor or a nonsupervisory coemployee. The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action. This is a negligence standard. Because the FEHA imposes this negligence standard only for harassment ‘by an employee other than an agent or supervisor’, by implication the FEHA makes the employer strictly liable for harassment by a supervisor.” (State Dept. of Health Servs., supra, 31 Cal.4th at pp. 1040–1041, original italics.)
  • “The applicable language of the FEHA does not suggest that an employer’s liability for sexual harassment by a supervisor is constrained by principles of agency law. Had the Legislature so intended, it would have used language in the FEHA imposing the negligence standard of liability on acts of harassment by an employee ‘other than an agent,’ ‘not acting as the employer’s agent,’ or ‘not acting within the scope of an agency for the employer.’ By providing instead in section 12940, subdivision (j)(1), that the negligence standard applies to acts of harassment ‘by an employee other than an agent or supervisor’ (italics added), the Legislature has indicated that all acts of harassment by a supervisor are to be exempted from the negligence standard, whether or not the supervisor was then acting as the employer’s agent, and that agency principles come into play only when the harasser is not a supervisor. (State Dept. of Health Servs., supra, 31 Cal.4th at p. 1041, original italics.)
  • “[I]n order for the employer to avoid strict liability for the supervisor’s actions under the FEHA, the harassment must result from a completely private relationship unconnected with the employment. Otherwise, the employer is strictly liable for the supervisor’s actions regardless of whether the supervisor was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
  • “In order to be actionable, it must be shown that respondents knew, or should have known, of the alleged harassment and failed to take appropriate action.” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 294 [156

Cal.Rptr.3d 851].)

• “If an employee other than an agent or supervisor commits the harassment, and the employer takes immediate and appropriate corrective action when it becomes or reasonably should become aware of the conduct—for example, when the victim or someone else informs the employer—there simply is no ‘unlawful employment practice’ that the FEHA governs.” (Carrisales v. Dept. of Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083], called into doubt on other grounds by statute.)

Secondary Sources

4 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 363, 370

Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,

3.45

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

________________

Harassment Individual- Wrongful Termination Additional

2522C. Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Individual Defendant (Gov. Code, §§ 12923, 12940(j))

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was subjected to harassment based on sexual favoritism at [name of covered entity] and that this harassment created a work environment that was hostile, intimidating, offensive, oppressive, or abusive. “Sexual favoritism” means that another employee has received preferential treatment with regard to promotion, work hours, assignments, or other significant employment benefits or opportunities because of a sexual relationship with an individual representative of the employer who was in a position to grant these preferences.

To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] was [an employee of/an applicant for a position with/a person providing services under a contract with/ an unpaid intern with/a volunteer with] [name of employer];

[2. That [name of individual defendant] was an employee of [name of covered entity];]

• That there was sexual favoritism in the work environment;
• That the sexual favoritism was severe or pervasive;
• That a reasonable [describe member of protected group, e.g., woman] in [name of plaintiff]’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive because of the sexual favoritism;
• That [name of plaintiff] considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive because of the sexual favoritism;
• That [name of individual defendant] [participated in/assisted/ [or] encouraged] the sexual favoritism;
• That [name of plaintiff] was harmed; and
• That the conduct was a substantial factor in causing [name of plaintiff]’s harm.

Derived from former CACI No. 2522 December 2007; Revised December 2015, May 2018, July 2019, May 2020, November 2021, May 2022

Directions for Use

This instruction is for use in a hostile work environment case involving sexual

favoritism when the defendant is also an employee of the covered entity. (Gov. Code, § 12940(j)(3).) Include optional element 2 if there is a dispute about the defendant’s status as an employee and include optional question 2 on the verdict form. See CACI No. VF-2507C, Work Environment Harassment—Sexual Favoritism—Individual Defendant.

The relevant provision protects an employee, an applicant, an unpaid intern or volunteer, or a person providing services under a contract. (Gov. Code,

§ 12940(j)(1).) If the facts of the case support it, the instruction should be modified as appropriate to the applicant’s circumstances.

For an employer defendant, see CACI No. 2521C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity Defendant. For a case in which the plaintiff is the target of harassment based on a protected status such as gender, race, or sexual orientation, see CACI No. 2522A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant. For an instruction for use if the plaintiff is not the target of the harassment, see CACI No. 2522B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Individual Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.

If there are both employer and individual supervisor defendants (see CACI No. 2521C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity Defendant) and both are found liable, they are both jointly and severally liable for any damages. Comparative fault and Proposition 51 do not apply to the employer’s strict liability for supervisor harassment. (State Dep’t of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6

Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information Systems, Inc. (1993)

13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on other grounds in

Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d

109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847,

1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are without fault and only have vicarious liability by virtue of some statutory fiat].)

See also the Sources and Authority to CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant.

Sources and Authority

• Declaration of Legislative Intent With Regard to Application of the Laws About Harassment. Government Code section 12923.
• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
• Employee Personal Liability for Harassment. Government Code section 12940(j)(3).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
  • Person Providing Services Under Contract. Government Code section 12940(j)(5).
  • Aiding and Abetting Fair Employment and Housing Act Violations. Government Code section 12940(i).
  • Perception and Association. Government Code section 12926(o).
  • “The elements [of a prima facie claim of hostile-environment sexual harassment] are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and

(5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote omitted.)

• “[T]he adjudicator’s inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff’s work performance. To show such interference, ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’ It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S. 17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov. Code, § 12923(a) endorsing this language as reflective of California law.)
  • “Following the guidance of the EEOC, and also employing standards adopted in our prior cases, we believe that an employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment.” (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 466 [30 Cal.Rptr.3d 797, 115 P.3d 77], internal citations omitted.)
  • “[S]exual favoritism by a manager may be actionable when it leads employees to believe that ‘they [can] obtain favorable treatment from [the manager] if they became romantically involved with him’, the affair is conducted in a manner ‘so indiscreet as to create a hostile work environment,’ or the manager has engaged in ‘other pervasive conduct . . . which created a hostile work environment.’ ” (Miller, supra, 36 Cal.4th at p. 465, internal citations omitted.)
  • “[A] romantic relationship between a supervisor and an employee does not, without more, give rise to a sexual discrimination or sexual harassment claim either under the FEHA or the public policy of the state.” (Proksel v. Gattis (1996) 41 Cal.App.4th 1626, 1631 [49 Cal.Rptr.2d 322].)
  • “[W]e conclude a nonharassing supervisor, who fails to take action to prevent sexual harassment, is not personally liable for sexual harassment under the Fair Employment and Housing Act (FEHA).” (Fiol v. Doellstedt (1996) 50

Cal.App.4th 1318, 1322 [58 Cal.Rptr.2d 308].)

• “A supervisor who, without more, fails to take action to prevent sexual harassment of an employee is not personally liable as an aider and abettor of the harasser, an aider and abettor of the employer or an agent of the employer.” (Fiol, supra, 50 Cal.App.4th at p. 1331.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 363, 370

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36[5] (Matthew Bender)

California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson Reuters)

Harassment in Work Place Directed at Others- Wrongful Termination Additional

Harassment in Work Place- Conduct Directed at Others

Harassment in Work Place- Conduct Directed at Others

Legal Framework in California

1. Harassment Laws: Harassment is unlawful when it creates a hostile work environment or results in an employment decision affecting the employee. This can include harassment based on race, gender, religion, national origin, age, disability, sexual orientation, or gender identity.
2. Wrongful Termination: California’s employment law operates under the “at-will” doctrine, but there are exceptions. Termination becomes wrongful if it violates state or federal anti-discrimination laws, including retaliation against an employee for complaining about harassment.
3. Employer Responsibilities: Employers are required to take reasonable steps to prevent and promptly correct harassing behavior in the workplace. Failure to do so can result in liability.
4. Burden of Proof: In harassment-related wrongful termination claims, the burden of proof often falls on the employee to demonstrate that harassment occurred and was a contributing factor in their termination.

Potential Problems and Challenges

1. Subtle Harassment: Harassment can often be subtle or indirect, making it difficult to prove. Situations where harassment isn’t overtly hostile or clear-cut present significant challenges in litigation.
2. Retaliation Concerns: An employee who is terminated after reporting harassment may face challenges in proving a direct link between their complaint and the termination decision.
3. Mixed Motive Issues: Employers may claim that the termination was due to legitimate reasons, unrelated to any harassment claim, leading to complex “mixed motive” cases.
4. Documentation and Evidence: Lack of proper documentation or evidence of harassment and its connection to termination can make legal redress challenging.

Examples

1. Case Example – Sexual Harassment: An employee facing unwanted sexual advances from a supervisor reports the behavior. Soon after, they are terminated for “unrelated” performance issues. This could be a case of wrongful termination where the employer retaliated against the employee for reporting harassment.
2. Racial Harassment Scenario: An employee of a particular race is subjected to racial slurs and jokes. After complaining to HR, their work is scrutinized more than their colleagues, leading to termination. This could be seen as wrongful termination stemming from racial harassment and subsequent retaliation.
3. Disability Harassment and Termination: An employee with a disability is constantly harassed about their condition and unfairly criticized at work. After filing a complaint, they are terminated for minor infractions, which could be a case of wrongful termination linked to harassment.

Conclusion

California’s legal framework regarding harassment and wrongful termination is designed to protect employees from discriminatory practices. However, the intricacies of proving harassment, especially in the context of termination, can be daunting. Employers must ensure a harassment-free workplace and exercise caution in termination decisions, particularly following harassment complaints. For employees, the challenges lie in proving the harassment and its connection to their termination. Each case requires a detailed examination of the facts, evidence, and the interplay between harassment and the reasons for termination.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2521B. Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))

[Name of plaintiff] claims that coworkers at [name of defendant] were subjected to harassment based on [describe protected status, e.g., race, gender, or age] and that this harassment created a work environment for [name of plaintiff] that was hostile, intimidating, offensive, oppressive, or abusive.

To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] was [an employee of/an applicant for a position with/a person providing services under a contract with/ an unpaid intern with/a volunteer with] [name of defendant];
2. That [name of plaintiff], although not personally subjected to harassing conduct, personally witnessed harassing conduct that took place in

immediate work environment;

• That the harassing conduct was severe or pervasive;
• That a reasonable [describe member of protected group, e.g., woman] in [name of plaintiff]’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;
• That [name of plaintiff] considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive toward [e.g., women];
• [Select applicable basis of defendant’s liability:] [That a supervisor engaged in the conduct;] [or]

[That [name of defendant] [or [his/her/nonbinary pronoun/its] supervisors or agents] knew or should have known of the conduct and failed to take immediate and appropriate corrective action;]

• That [name of plaintiff] was harmed; and
• That the conduct was a substantial factor in causing [name of plaintiff]’s harm.

Derived from former CACI No. 2521 December 2007; Revised June 2013, December 2015, May 2018, July 2019, November 2021

Directions for Use

This instruction is for use in a hostile work environment case if the plaintiff was not the target of the harassing conduct and the defendant is an employer or other entity covered by the FEHA. If the defendant is a labor organization, employment agency, apprenticeship training program or any training program leading to employment (rather than an employer), the instruction should be modified as appropriate. (See Gov. Code, § 12940(j)(1).) The relevant provision protects an employee, an applicant, an unpaid intern or volunteer, or a person providing services under a contract. (See ibid.) If the alleged harassment did not occur in the workplace, the instruction should be modified as appropriate. (See Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1051 [58 Cal.Rptr.2d 122] [“[A]s long as the harassment occurs in a work-related context, the employer is liable”].)

For an individual defendant, such as the alleged harasser or plaintiff’s coworker, see CACI No. 2522B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Individual Defendant. For a case in which the plaintiff is the target of the harassment, see CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant. For an instruction for use if the hostile environment is due to sexual favoritism, see CACI No. 2521C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.

In element 6, select the applicable basis of employer liability: (a) strict liability for a supervisor’s harassing conduct, or (b) the employer’s ratification of the conduct. For a definition of “supervisor,” see CACI No. 2525, Harassment—“Supervisor” Defined. If there are both employer and individual supervisor defendants (see CACI No. 2522B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Individual Defendant) and both are found liable, they are both jointly and severally liable for any damages. Comparative fault and Proposition 51 do not apply to the employer’s strict liability for supervisor harassment. (State

Dep’t. of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6

Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information Systems, Inc. (1993)

13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on other grounds in

Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664 [25 Cal.Rptr.2d

109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847,

1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are without fault and only have vicarious liability by virtue of some statutory fiat].)

See also the Sources and Authority to CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant.

Sources and Authority

• Legislative Intent With Regard to Application of the Laws About Harassment. Government Code section 12923.
• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
  • “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
  • Person Providing Services Under Contract. Government Code section 12940(j)(5).
  • Harassment Because of Sex. Government Code section 12940(j)(4)(C).
  • Aiding and Abetting Fair Employment and Housing Act Violations. Government Code section 12940(i).
  • Perception and Association. Government Code section 12926(o).
  • “The elements [of a prima facie claim of hostile-environment sexual harassment] are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and

(5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote omitted.)

• “[T]he adjudicator’s inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff’s work performance. To show such interference, ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’ It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S. 17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov. Code, § 12923(a) endorsing this language as reflective of California law.)
  • “The plaintiff’s work environment is affected not only by conduct directed at herself but also by the treatment of others. A woman’s perception that her work environment is hostile to women will obviously be reinforced if she witnesses the harassment of other female workers.” (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519 [76 Cal.Rptr.2d 547], internal citations omitted.)
  • “Harassment against others in the workplace is only relevant to the plaintiff’s case if she has personal knowledge of it. Unless plaintiff witnesses the conduct against others, or is otherwise aware of it, that conduct cannot alter the conditions of her employment and create an abusive working environment. Stated another way, a reasonable person in plaintiff’s position would not find the environment hostile or abusive unless that person had knowledge of the objectionable conduct toward others.” (Beyda, supra, 65 Cal.App.4th at p. 520.)
  • “To state that an employee must be the direct victim of the sexually harassing conduct is somewhat misleading as an employee who is subjected to a hostile work environment is a victim of sexual harassment even though no offensive remarks or touchings are directed to or perpetrated upon that employee. Generally, however, sexual conduct that involves or is aimed at persons other

than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff. A hostile work environment sexual harassment claim by a plaintiff who was not personally subjected to offensive remarks and touchings requires ‘an even higher showing’ than a claim by one who had been sexually harassed without suffering tangible job detriment: such a plaintiff must ‘establish that the sexually harassing conduct permeated [her] direct work environment.’ [¶] To meet this burden, the plaintiff generally must show that the harassment directed at others was in her immediate work environment, and that she personally witnessed it. The reason for this is obvious: if the plaintiff does not witness the incidents involving others, ‘those incidents cannot affect . . . her perception of the hostility of the work environment.’ ” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284–285 [42 Cal.Rptr.3d 2, 132 P.3d 211], internal citations omitted.)

• “[U]nder the FEHA, an employer is strictly liable for all acts of sexual harassment by a supervisor. (State Dep’t. of Health Servs., supra, 31 Cal.4th at p. 1041, original italics.)
• “The applicable language of the FEHA does not suggest that an employer’s liability for sexual harassment by a supervisor is constrained by principles of agency law. Had the Legislature so intended, it would have used language in the FEHA imposing the negligence standard of liability on acts of harassment by an employee ‘other than an agent,’ ‘not acting as the employer’s agent,’ or ‘not acting within the scope of an agency for the employer.’ By providing instead in section 12940, subdivision (j)(1), that the negligence standard applies to acts of harassment ‘by an employee other than an agent or supervisor’ (italics added), the Legislature has indicated that all acts of harassment by a supervisor are to be exempted from the negligence standard, whether or not the supervisor was then acting as the employer’s agent, and that agency principles come into play only when the harasser is not a supervisor. (State Dept. of Health Servs., supra, 31 Cal.4th at p. 1041, original italics.)
• “[I]n order for the employer to avoid strict liability for the supervisor’s actions under the FEHA, the harassment must result from a completely private relationship unconnected with the employment. Otherwise, the employer is strictly liable for the supervisor’s actions regardless of whether the supervisor was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
• “In order to be actionable, it must be shown that respondents knew, or should have known, of the alleged harassment and failed to take appropriate action.” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 294 [156

Cal.Rptr.3d 851].)

• “If an employee other than an agent or supervisor commits the harassment, and the employer takes immediate and appropriate corrective action when it becomes or reasonably should become aware of the conduct—for example, when the victim or someone else informs the employer—there simply is no ‘unlawful employment practice’ that the FEHA governs.” (Carrisales v. Dept. of

FAIR CACI No. 2521B

Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083], called into doubt on other grounds by statute.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 363, 370

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,

3.45

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)

_______________________

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2522B. Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Individual Defendant (Gov.Code, §§ 12923, 12940(j))

[Name of plaintiff] claims that coworkers at [name of covered entity] were subjected to harassment based on [describe protected status, e.g., race, gender, or age] and that this harassment created a work environment for [name of plaintiff] that was hostile, intimidating, offensive, oppressive, or abusive.

To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] was [an employee of/an applicant for a position with/a person providing services under a contract with/ an unpaid intern with/a volunteer with] [name of covered entity];

[2. That [name of individual defendant] was an employee of [name of covered entity];]

• That [name of plaintiff], although not personally subjected to harassing conduct, personally witnessed harassing conduct that took place in

[his/her/nonbinary
pronoun]

immediate work environment;

• That the harassing conduct was severe or pervasive;
• That a reasonable [describe member of protected group, e.g., woman] in [name of plaintiff]’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;
• That [name of plaintiff] considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive toward [e.g., women];
• That [name of individual defendant] [participated in/assisted/ [or] encouraged] the harassing conduct;
• That [name of plaintiff] was harmed; and
• That the conduct was a substantial factor in causing [name of plaintiff]’s harm.

Derived from former CACI No. 2522 December 2007; Revised June 2013, December 2015, May 2018, July 2019, November 2021, May 2022

Directions for Use

This instruction is for use in a hostile work environment case if the plaintiff was not the target of the harassing conduct and the defendant is also an employee of the

covered entity. (Gov. Code, § 12940(j)(3).) Include optional element 2 if there is a dispute about the defendant’s status as an employee and include optional question 2 on the verdict form. See CACI No. VF-2507B, Work Environment Harassment—Conduct Directed at Others—Individual Defendant.

The relevant provision protects an employee, an applicant, an unpaid intern or volunteer, or a person providing services under a contract. (See Gov. Code,

§ 12940(j)(1).) If the alleged harassment did not occur in the workplace, the instruction should be modified as appropriate. (See Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1051 [58 Cal.Rptr.2d 122] [“[A]s long as the harassment occurs in a work-related context, the employer is liable”].)

For an employer defendant, see CACI No. 2521B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Employer or Entity Defendant. For a case in which the plaintiff is the target of the harassment, see CACI No. 2522A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant. For an instruction for use if the hostile environment is due to sexual favoritism, see CACI No. 2522C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Individual Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.

If there are both employer and individual supervisor defendants (see CACI No. 2521B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Employer or Entity Defendant) and both are found liable, they are both jointly and severally liable for any damages. Comparative fault and Proposition 51 do not apply to the employer’s strict liability for supervisor harassment. (State Dep’t of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6 Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information

Systems, Inc. (1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on

other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664

[25 Cal.Rptr.2d 109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9

Cal.App.4th 1847, 1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are without fault and only have vicarious liability by virtue of some statutory fiat].)

See also the Sources and Authority to CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant.

Sources and Authority

• Legislative Intent With Regard to Application of the Laws About Harassment. Government Code section 12923.
• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
• Employee Personal Liability for Harassment. Government Code section 12940(j)(3).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
  • Harassment Because of Sex. Government Code section 12940(j)(4)(C).
  • Person Providing Services Under Contract. Government Code section 12940(j)(5).
  • Aiding and Abetting Fair Employment and Housing Act Violations. Government Code section 12940(i).
  • Perception and Association. Government Code section 12926(o).
  • “The elements [of a prima facie claim of hostile-environment sexual harassment] are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and

(5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [262 Cal.Rptr. 842], footnote omitted.)

• “[T]he adjudicator’s inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff’s work performance. To show such interference, ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’ It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S. 17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J; see Gov. Code, § 12923(a) endorsing this language as reflective of California law.)
  • “The plaintiff’s work environment is affected not only by conduct directed at herself but also by the treatment of others. A woman’s perception that her work environment is hostile to women will obviously be reinforced if she witnesses the harassment of other female workers.” (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519 [76 Cal.Rptr.2d 547], internal citations omitted.)
  • “Harassment against others in the workplace is only relevant to the plaintiff’s case if she has personal knowledge of it. Unless plaintiff witnesses the conduct against others, or is otherwise aware of it, that conduct cannot alter the conditions of her employment and create an abusive working environment. Stated another way, a reasonable person in plaintiff’s position would not find the environment hostile or abusive unless that person had knowledge of the objectionable conduct toward others.” (Beyda, supra, 65 Cal.App.4th at p. 520.)
  • “To state that an employee must be the direct victim of the sexually harassing conduct is somewhat misleading as an employee who is subjected to a hostile work environment is a victim of sexual harassment even though no offensive remarks or touchings are directed to or perpetrated upon that employee. Generally, however, sexual conduct that involves or is aimed at persons other than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff. A hostile work environment sexual harassment claim by

a plaintiff who was not personally subjected to offensive remarks and touchings requires ‘an even higher showing’ than a claim by one who had been sexually harassed without suffering tangible job detriment: such a plaintiff must ‘establish that the sexually harassing conduct permeated [her] direct work environment.’ [¶] To meet this burden, the plaintiff generally must show that the harassment directed at others was in her immediate work environment, and that she personally witnessed it. The reason for this is obvious: if the plaintiff does not witness the incidents involving others, ‘those incidents cannot affect . . . her perception of the hostility of the work environment.’ ” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284–285 [42 Cal.Rptr.3d 2, 132 P.3d 211], internal citations omitted.)

• “[W]e conclude a nonharassing supervisor, who fails to take action to prevent sexual harassment, is not personally liable for sexual harassment under the Fair Employment and Housing Act (FEHA).” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1322 [58 Cal.Rptr.2d 308].)
• “A supervisor who, without more, fails to take action to prevent sexual harassment of an employee is not personally liable as an aider and abettor of the harasser, an aider and abettor of the employer or an agent of the employer.” (Fiol, supra, 50 Cal.App.4th at p. 1331.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 363, 370

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)

California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson Reuters)

Harassment Directed at Plaintiff – Wrongful Termination Additional

Harassment -Conduct Directed at Plaintiff

Harassment -Conduct Directed at Plaintiff

Legal Framework in California

1. Definition of Harassment: In California, harassment in the workplace is defined as unwelcome conduct based on race, religion, sex, national origin, age (40 or older), disability, or genetic information. This includes sexual harassment.
2. Wrongful Termination Laws: California follows the “at-will” employment doctrine but with exceptions. Wrongful termination can occur if an employee is fired for reasons that violate public policy, including retaliation for complaining about harassment.
3. Protected Classes: California law protects additional classes not covered under federal law, such as sexual orientation, gender identity, and medical condition.
4. Employer Liability: Employers can be held liable for harassment by a supervisor that results in a negative employment action such as termination. They can also be liable for failing to prevent harassment by coworkers or non-employees.

Potential Problems and Challenges

1. Proving Harassment: Establishing that harassment occurred can be challenging. It often relies on subjective experiences and the availability of evidence or witnesses.
2. Retaliation Claims: Employees who face termination after reporting harassment may claim retaliation. Proving a direct link between the complaint and the termination can be complex.
3. Ambiguity in Law: The definition of harassment can be broad and subjective, leading to disputes over what constitutes illegal behavior.
4. Employer Defense: Employers may argue that the termination was based on legitimate, non-discriminatory reasons, complicating the legal battle.

Examples

1. Case of Sexual Harassment Leading to Termination: An employee reports sexual harassment by a supervisor and is subsequently fired for “poor performance.” This could be a classic case of wrongful termination following a harassment complaint.
2. Hostile Work Environment: An employee in a protected class is subjected to ongoing jokes and comments about their identity, contributing to a hostile work environment. If this leads to their resignation, it could be construed as constructive dismissal, a form of wrongful termination.
3. Discrimination Based on Disability: An employee with a disability faces derogatory comments and is excluded from meetings. If they are later terminated, they may claim that the harassment and termination were due to discrimination.

Conclusion

In California, the intersection of harassment and wrongful termination laws creates a complex legal landscape. Victims of harassment leading to wrongful termination have legal avenues for redress, but the burden of proof and the nuances of each case make these issues legally challenging. Employers must be proactive in preventing harassment and careful in their termination procedures to avoid legal pitfalls.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

_______

Additional Information Harassment in California Employment Law:

Harassment in the workplace is a violation of employment laws in California. Harassment can take various forms, including harassment based on race, sex, religion, age, disability, or other protected characteristics. It can create a hostile work environment and may lead to wrongful termination claims if an employer fails to address it properly.

1. Definition of Harassment:

• Hostile Work Environment: Harassment in California can occur when unwelcome conduct based on a protected characteristic (e.g., race, gender, age) creates a hostile or intimidating work environment. This can include offensive comments, slurs, jokes, or actions that interfere with an employee’s ability to perform their job.

2. Legal Consequences:

• Wrongful Termination: If an employee is terminated because they reported or complained about harassment or because they were the target of harassment, they may have a claim for wrongful termination.
• Civil Liability: Employers can be held liable for harassment perpetrated by their employees if they fail to take appropriate corrective action. The consequences may include damages for emotional distress, lost wages, punitive damages, and attorney’s fees.

3. Reporting and Investigating Harassment:

• Employees who believe they are being harassed should report the behavior to their supervisor or HR department. Employers are required to have clear policies and procedures for reporting and investigating harassment claims.
• Employers are legally obligated to conduct a prompt and thorough investigation of the complaint and take appropriate corrective action if harassment is substantiated.

Problems That Could Arise:

Several issues can arise in the context of harassment, wrongful termination, and employment law in California:

1. Retaliation: Employers are prohibited from retaliating against employees who report harassment or who participate in an investigation. If an employee is wrongfully terminated or faces adverse employment actions after reporting harassment, they may have a separate claim for retaliation.

Example: If an employee reports racial harassment and is subsequently demoted or fired, they may have a valid retaliation claim.

2. Employer Liability: Determining whether an employer took reasonable steps to prevent and address harassment can be complex. Employers must provide anti-harassment training to employees and have effective policies in place to prevent harassment.

Example: If an employer failed to provide training, did not have clear policies, or did not take appropriate action when harassment was reported, they could be held liable for the harassment.

3. Defenses: Employers may raise defenses, such as claiming they had no knowledge of the harassment or that they took prompt and effective corrective action. The effectiveness of these defenses can vary based on the specific circumstances of each case.

Example: If an employer can demonstrate that they promptly investigated and addressed a harassment complaint as soon as they became aware of it, they may have a stronger defense.

Conclusion

In conclusion, harassment in the workplace is a serious violation of employment law in California. Employers must have robust policies in place to prevent, report, and address harassment promptly. Employees who believe they have been subjected to harassment should report it promptly and seek legal advice to protect their rights. Wrongful termination in the context of harassment can lead to significant legal consequences for employers, including civil liability for damages and potential punitive damages.

________

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2521A. Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, §§ 12923, 12940(j))

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was subjected to harassment based on [his/her/nonbinary pronoun] [describe protected status, e.g., race, gender, or age] at [name of defendant] and that this harassment created a work environment that was hostile, intimidating, offensive, oppressive, or abusive.

To establish this claim, [name of plaintiff] and that this harassment created a work environment that was hostile, intimidating, offensive, oppressive, or abusive.

1. That [name of plaintiff] was [an employee of/an applicant for a position with/a person providing services under a contract with/ an unpaid intern with/a volunteer with] [name of defendant];
2. That [name of plaintiff] was subjected to harassing conduct because [he/she/nonbinary pronoun] was [protected status, e.g., a woman];
3. That the harassing conduct was severe or pervasive;
4. That a reasonable [e.g., woman] in [name of plaintiff]’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;
5. That [name of plaintiff] considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;
6. [Select applicable basis of defendant’s liability:] [That a supervisor engaged in the conduct;] [or]

[That [name of defendant] [or [his/her/nonbinary pronoun/its] supervisors or agents] knew or should have known of the conduct and failed to take immediate and appropriate corrective action;]

• That [name of plaintiff] was harmed; and
• That the conduct was a substantial factor in causing [name of plaintiff]’s harm.

Derived from former CACI No. 2521 December 2007; Revised June 2013, December 2015, May 2018, July 2019, May 2020, November 2021

Directions for Use

This instruction is for use in a hostile work environment case when the defendant is an employer or other entity covered by the FEHA. If the defendant is a labor organization, employment agency, apprenticeship training program or any training program leading to employment (rather than an employer), the instruction should be modified as appropriate. (See Gov. Code, § 12940(j)(1).) The relevant provision protects an employee, an applicant, an unpaid intern or volunteer, or a person providing services under a contract. (See ibid.) If the alleged harassment did not occur in the workplace, the instruction should be modified as appropriate. (See Doe

v. Capital Cities (1996) 50 Cal.App.4th 1038, 1051 [58 Cal.Rptr.2d 122] [“[A]s long as the harassment occurs in a work-related context, the employer is liable”].)

For an individual defendant, such as the alleged harasser or plaintiff’s coworker, see CACI No. 2522A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant. For a case in which the plaintiff is not the target of the harassment, see CACI No. 2521B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Employer or Entity Defendant. For an instruction for use if the hostile environment is due to sexual favoritism, see CACI No. 2521C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Employer or Entity Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.

Modify element 2 if plaintiff was not actually a member of the protected class, but alleges harassment because the plaintiff was perceived to be a member, or associated with someone who was or was perceived to be a member, of the protected class. (See Gov. Code, § 12926(o).)

In element 6, select the applicable basis of employer liability: (a) strict liability for a supervisor’s harassing conduct, or (b) the employer’s ratification of the conduct. For a definition of “supervisor,” see CACI No. 2525, Harassment—“Supervisor” Defined. If there are both employer and individual supervisor defendants (see CACI No. 2522A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant) and both are found liable, they are both jointly and severally liable for any damages. Comparative fault and Proposition 51 do not apply to the employer’s strict liability for supervisor harassment. (State Dept. of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6 Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information

Systems, Inc. (1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on

other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664

[25 Cal.Rptr.2d 109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9

Cal.App.4th 1847, 1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are without fault and only have vicarious liability by virtue of some statutory fiat].)

Sources and Authority

• Legislative Intent With Regard to Application of the Laws About Harassment. Government Code section 12923.
• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
• “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
• Harassment Because of Sex. Government Code section 12940(j)(4)(C).
• Person Providing Services Under Contract. Government Code section 12940(j)(5).
• Aiding and Abetting Fair Employment and Housing Act Violations. Government Code section 12940(i).
• Perception and Association. Government Code section 12926(o).
• “To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff’s] protected status; (4) the harassment unreasonably interfered with [plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581 [250 Cal.Rptr.3d 1].)
• “[T]he adjudicator’s inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff’s work performance. To show such interference, ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’ It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S. 17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov. Code, § 12923(a) endorsing this language as reflective of California law.)
• “[A]n employer is strictly liable for all acts of sexual harassment by a supervisor.” (State Dept. of Health Servs., supra, 31 Cal.4th at p. 1042.)
• “The applicable language of the FEHA does not suggest that an employer’s liability for sexual harassment by a supervisor is constrained by principles of agency law. Had the Legislature so intended, it would have used language in the FEHA imposing the negligence standard of liability on acts of harassment by an employee ‘other than an agent,’ ‘not acting as the employer’s agent,’ or ‘not acting within the scope of an agency for the employer.’ By providing instead in section 12940, subdivision (j)(1), that the negligence standard applies to acts of harassment ‘by an employee other than an agent or supervisor’ (italics added), the Legislature has indicated that all acts of harassment by a supervisor are to be exempted from the negligence standard, whether or not the supervisor was then acting as the employer’s agent, and that agency principles come into play only

when the harasser is not a supervisor. (State Dept. of Health Services, supra, 31 Cal.4th at p. 1041, original italics.)

• “When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action).” (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 952 [139 Cal.Rptr.3d 464].)
  • “If an employee other than an agent or supervisor commits the harassment, and the employer takes immediate and appropriate corrective action when it becomes or reasonably should become aware of the conduct—for example, when the victim or someone else informs the employer—there simply is no ‘unlawful employment practice’ that the FEHA governs.” (Carrisales v. Dept. of Corrections (1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083], called into doubt on other grounds by statute.)
  • “[I]n order for the employer to avoid strict liability for the supervisor’s actions under the FEHA, the harassment must result from a completely private relationship unconnected with the employment. Otherwise, the employer is strictly liable for the supervisor’s actions regardless of whether the supervisor was acting as the employer’s agent.” (Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)
  • Employers may be liable for the conduct of certain agents. (See Gov. Code,

§§ 12925(d), 12926(d), and 12940(j)(1) and Reno v. Baird (1998) 18 Cal.4th 640, 658 [76 Cal.Rptr.2d 499, 957 P.2d 1333] [California Supreme Court declined to express opinion whether “agent” language in the FEHA merely incorporates respondeat superior principles or has some other meaning].)

• “Here, [defendant] was jointly liable with its employees on a respondeat superior or vicarious liability theory on every cause of action in which it was named as a defendant.” (Bihun, supra, 13 Cal.App.4th at p. 1000.)
  • “The McDonnell Douglas burden-shifting framework does not apply to [plaintiff]’s harassment claim either. Since ‘there is no possible justification for harassment in the workplace,’ an employer cannot offer a legitimate nondiscriminatory reason for it.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 927 [227 Cal.Rptr.3d 286].)
  • “[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.’ ” (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 464–465 [79 Cal.Rptr.2d 33], internal citations and footnote omitted.)
  • “When the workplace is permeated with discriminatory intimidation, ridicule and insult that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,’ the law is violated.” (Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal.App.4th 397, 409

[27 Cal.Rptr.2d 457], internal citation omitted.)

• “[N]ot every utterance of a racial slur in the workplace violates the FEHA or Title VII. As the United States Supreme Court has recognized in the context of sexual harassment: ‘[N]ot all workplace conduct that may be described as “harassment” affects a “term, condition, or privilege” of employment within the meaning of Title VII. For sexual harassment to be actionable, it must be sufficiently severe or pervasive “to alter the conditions of [the victim’s] employment and create an abusive working environment.” ’ . . . ‘Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.’ . . . California courts have adopted the same standard in evaluating claims under the FEHA.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129–130 [87 Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)
• “To be actionable, ‘a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.’ That means a plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff’s position, considering all the circumstances, would not share the same perception. Likewise, a plaintiff who does not perceive the workplace as hostile or abusive will not prevail, even if it objectively is so.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 284 [42 Cal.Rptr.3d 2, 132 P.3d 211], internal citations omitted.)
• “The stray remarks doctrine . . . allows a court to weigh and assess the remarks in isolation, and to disregard the potentially damaging nature of discriminatory remarks simply because they are made by ‘nondecisionmakers, or [made] by decisionmakers unrelated to the decisional process.’ [Defendant] also argues that ambiguous remarks are stray, irrelevant, prejudicial, and inadmissible. However, ‘the task of disambiguating ambiguous utterances is for trial, not for summary judgment.’ Determining the weight of discriminatory or ambiguous remarks is a role reserved for the jury.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 540–541 [113 Cal.Rptr.3d 327, 235 P.3d 988], internal citations omitted.)
• “[I]n reviewing the trial court’s grant of [defendant]’s summary judgment motion, the Court of Appeal properly considered evidence of alleged discriminatory comments made by decision makers and coworkers along with all other evidence in the record.” (Reid, supra, 50 Cal.4th at p. 545.)
• “[M]any employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper. Such cases, we caution, are rarely appropriate for disposition on summary judgment, however liberalized

it be.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286 [100

Cal.Rptr.3d 296].)

• “In contending that the ‘subjectively offensive’ element was not proven, a defendant ‘will assert that a plaintiff consented to the conduct through active participation in it, or was not injured because the plaintiff did not subjectively find it abusive.’ [¶] [Evidence Code] Section 1106 limits the evidence the defendant may use to support this assertion. It provides that ‘[i]n any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, opinion evidence, reputation evidence, and evidence of specific instances of the plaintiff’s sexual conduct, or any of that evidence, is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff           ’ This general rule is, however, subject to the exception that it

‘does not apply to evidence of the plaintiff’s sexual conduct with the alleged perpetrator.’ The term ‘sexual conduct’ within the meaning of section 1106 has been broadly construed to include ‘all active or passive behavior (whether statements or actions), that either directly or through reasonable inference establishes a plaintiff’s willingness to engage in sexual activity,’ including ‘racy banter, sexual horseplay, and statements concerning prior, proposed, or planned sexual exploits.’ ” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 874 [235 Cal.Rptr.3d 161], internal citations omitted.)

• “[A]llegations of a racially hostile work-place must be assessed from the perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff.” (McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103, 1115.)
  • “Under……. FEHA, sexual harassment can occur between members of the same

gender as long as the plaintiff can establish the harassment amounted to discrimination because of sex.” (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1525 [169 Cal.Rptr.3d 794], original italics.)

• “[T]here is no requirement that the motive behind the sexual harassment must be sexual in nature. ‘[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.’ Sexual harassment occurs when, as is alleged in this case, sex is used as a weapon to create a hostile work environment.” (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1564 [45 Cal.Rptr.3d 597], original italics, internal citation omitted.)
  • “The plaintiff must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire. For example, a female plaintiff can prevail by showing that the harassment was because of the defendant’s bias against women; she need not show that it was because of the defendant’s sexual interest in women. In every case, however, the plaintiff must show a discriminatory intent or motivation based on gender.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 114 [129 Cal.Rptr.3d 384], internal citations omitted.)
  • “[A] heterosexual male is subjected to harassment because of sex under the

FEHA when attacks on his heterosexual identity are used as a tool of harassment in the workplace, irrespective of whether the attacks are motivated by sexual desire or interest.” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1239–1240 [166 Cal.Rptr.3d 676].)

• “A recent legislative amendment modifies section 12940, subdivision (j)(4)(C) (a provision of FEHA specifying types of conduct that constitute harassment because of sex) to read: ‘For purposes of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.’ ” (Lewis, supra, 224 Cal.App.4th at p. 1527 fn. 8, original italics.)
• “California courts have held so-called ‘me too’ evidence, that is, evidence of gender bias against employees other than the plaintiff, may be admissible evidence in discrimination and harassment cases.” (Meeks, supra, 24 Cal.App.5th at p. 871.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 363, 370

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of Law Prohibiting Harassment, ¶¶ 10:18–10:19, 10:22, 10:31 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.21, 3.36,

3.45

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:56 (Thomson Reuters)

______________________

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2522A. Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant (Gov.Code, §§ 12923, 12940(j))

[Name of plaintiff] claims that [name of individual defendant] subjected [him/her/nonbinary pronoun] to harassment based on [describe protected status, e.g., race, gender, or age] at [name of covered entity] and that this harassment created a work environment that was hostile, intimidating, offensive, oppressive, or abusive.

To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] was [an employee of/an applicant for a position with/a person providing services under a contract with/ an unpaid intern with/a volunteer with] [name of covered entity];

[2. That [name of individual defendant] was an employee of [name of covered entity];]

• That [name of plaintiff] was subjected to harassing conduct because [he/she/nonbinary pronoun] was [protected status, e.g., a woman];
• That the harassing conduct was severe or pervasive;
• That a reasonable [e.g., woman] in [name of plaintiff]’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;
• That [name of plaintiff] considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;
• That [name of individual defendant] [participated in/assisted/ [or] encouraged] the harassing conduct;
• That [name of plaintiff] was harmed; and
• That the conduct was a substantial factor in causing [name of plaintiff]’s harm.

Derived from former CACI No. 2522 December 2007; Revised June 2013, December 2015, May 2018, July 2019, May 2020, November 2021, May 2022

Directions for Use

This instruction is for use in a hostile work environment case if the plaintiff was the target of the harassing conduct and the defendant is also an employee of the covered entity. (Gov. Code, § 12940(j)(3).) Include optional element 2 if there is a dispute about the defendant’s status as an employee and include optional question 2 on the verdict form. See CACI No. VF-2507A, Work Environment Harassment—Conduct

Directed at Plaintiff—Individual Defendant.

The relevant provision protects an employee, an applicant, an unpaid intern or volunteer, or a person providing services under a contract. (See Gov. Code,

§ 12940(j)(1).) If the alleged harassment did not occur in the workplace, the instruction should be modified as appropriate. (See Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1051 [58 Cal.Rptr.2d 122] [“[A]s long as the harassment occurs in a work-related context, the employer is liable”].)

For an employer defendant, see CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant. For a case in which the plaintiff is not the target of the harassment, see CACI No. 2522B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Individual Defendant. For an instruction for use if the hostile environment is due to sexual favoritism, see CACI No. 2522C, Work Environment Harassment—Sexual Favoritism—Essential Factual Elements—Individual Defendant. Also read CACI No. 2523, “Harassing Conduct” Explained, and CACI No. 2524, “Severe or Pervasive” Explained.

Modify element 3 if the plaintiff was not actually a member of the protected class, but alleges harassment because the plaintiff was perceived to be a member, or associated with someone who was or was perceived to be a member, of the protected class. (See Gov. Code, § 12926(o).)

If there are both employer and individual supervisor defendants (see CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant) and both are found liable, they are both jointly and severally liable for any damages. Comparative fault and Proposition 51 do not apply to the employer’s strict liability for supervisor harassment. (State Dept. of Health Servs. v. Superior Court (2003) 31 Cal.4th 1026, 1041–1042 [6 Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information

Systems, Inc. (1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on

other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664

[25 Cal.Rptr.2d 109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. (1992) 9

Cal.App.4th 1847, 1851 [12 Cal.Rptr.2d 411] [Proposition 51 cannot be applied to those who are without fault and only have vicarious liability by virtue of some statutory fiat].)

See also the Sources and Authority to CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant.

Sources and Authority

• Legislative Intent With Regard to Application of the Laws About Harassment. Government Code section 12923.
• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
•  
• Employee Personal Liability for Harassment. Government Code section 12940(j)(3).
  • “Employer” Defined for Harassment. Government Code section 12940(j)(4)(A).
  • Harassment Because of Sex. Government Code section 12940(j)(4)(C).
  • Person Providing Services Under Contract. Government Code section 12940(j)(5).
  • Aiding and Abetting Fair Employment and Housing Act Violations. Government Code section 12940(i).
  • Perception and Association. Government Code section 12926(o).
  • “To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff’s] protected status; (4) the harassment unreasonably interfered with [plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581 [250 Cal.Rptr.3d 1].)
  • “[T]he adjudicator’s inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff’s work performance. To show such interference, ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’ It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S. 17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov. Code, § 12923(a) endorsing this language as reflective of California law.)
  • “Under FEHA, an employee who harasses another employee may be held personally liable.” (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1524

[169 Cal.Rptr.3d 794].)

• “A supervisor who, without more, fails to take action to prevent sexual harassment of an employee is not personally liable as an aider and abettor of the harasser, an aider and abettor of the employer or an agent of the employer.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1331 [58 Cal.Rptr.2d 308].)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 363, 370

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:40, 10:110–10:260 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.14, 3.17, 3.36–3.45

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)

CACI No. 2522A       FAIR EMPLOYMENT AND HOUSING ACT

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)

California Civil Practice: Employment Litigation §§ 2:56–2:56.50 (Thomson Reuters)

Avoidable Consequences Defense to Sexual Harassment- Wrongful Termination Additional

Avoidable Consequences Defense to Sexual Harassment in the Context of Wrongful Termination and Employment Law in California

Introduction:

Sexual harassment is a serious issue in the workplace, and California, like many other states, has strict laws in place to protect employees from such behavior. When a supervisor is accused of sexual harassment, it can lead to not only civil liability but also potential criminal charges. In the context of wrongful termination and employment law in California, the “avoidable consequences” defense is a legal argument that employers may use to mitigate their liability in cases involving allegations of sexual harassment by a supervisor. This defense asserts that the victim of harassment failed to take reasonable steps to prevent or mitigate the harm they suffered. In this overview, we will examine the “avoidable consequences” defense, its legal implications, potential problems that can arise, and provide examples to illustrate its application.

I. The Avoidable Consequences Defense:

The “avoidable consequences” defense is grounded in the legal principle that an injured party has a duty to mitigate their damages. In the context of sexual harassment, it argues that the victim failed to take reasonable steps to avoid or lessen the harm they suffered. California law recognizes this defense, but its application can be complex and highly fact-dependent.

II. Legal Implications: A. Reasonable Steps:

To successfully assert the avoidable consequences defense in California, the employer must demonstrate that the victim of sexual harassment did not take reasonable steps to address the issue. Reasonable steps may include:

1. Reporting the harassment to the appropriate channels within the company.
2. Utilizing any available internal complaint procedures or grievance mechanisms.
3. Seeking legal advice or counseling to cope with the harassment.
4. Taking advantage of anti-harassment training or education provided by the employer.

B. Burden of Proof:

The burden of proof rests on the employer to establish that the victim failed to take reasonable steps. They must demonstrate that the victim’s actions or inactions were a substantial factor contributing to their own harm. This burden is significant and often requires a careful examination of the facts and circumstances surrounding the case.

C. Causation:

The employer must also establish a causal connection between the victim’s failure to take reasonable steps and the harm suffered. They must show that if the victim had taken such steps, the harm could have been avoided or mitigated.

III. Problems that Could Arise:

A. Subjectivity: One problem with the avoidable consequences defense is that it can be highly subjective. What may be considered reasonable steps for one person may not be the same for another. This subjectivity can lead to disputes over whether the victim’s actions were genuinely unreasonable.

B. Retaliation Claims: Victims of sexual harassment may fear retaliation if they report the harassment, which can deter them from taking immediate action. This fear can complicate the employer’s argument that the victim failed to take reasonable steps.

C. Lack of Awareness: In some cases, victims may not be fully aware of their rights or the company’s policies regarding harassment. This lack of awareness can affect their ability to take appropriate action.

IV. Examples:

1. Example of Successful Avoidable Consequences Defense: Imagine a scenario where an employee is subjected to inappropriate comments by their supervisor. The victim does not report the harassment to HR or any company authority, nor do they utilize any available internal procedures. In this case, if the employer can show that the victim’s failure to report the harassment allowed it to continue and worsen, they may successfully assert the avoidable consequences defense.
2. Example of Unsuccessful Avoidable Consequences Defense: Consider a situation where an employee repeatedly reports sexual harassment to HR, but the company fails to take any action to stop it. Despite the victim’s diligent efforts, the harassment continues. In this case, it would be challenging for the employer to argue that the victim failed to take reasonable steps to avoid the consequences.

Conclusion

In conclusion, the avoidable consequences defense in sexual harassment cases in California hinges on whether the victim took reasonable steps to prevent or mitigate the harm they suffered. While it is a valid defense, its application can be complex, and it must meet a high burden of proof. Employers must be cautious when relying on this defense, as it may not always absolve them of liability, and it can be subject to various challenges and nuances based on the specific facts of each case.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2526. Affirmative Defense—Avoidable Consequences Doctrine (Sexual Harassment by a Supervisor)

If [name of plaintiff] proves that [name of supervisor] sexually harassed [him/her/nonbinary pronoun], [name of employer defendant] is responsible for [name of plaintiff]’s harm caused by the harassment. However, [name of employer defendant] claims that [name of plaintiff] could have avoided some or all of the harm with reasonable effort. To succeed, [name of employer defendant] must prove all of the following:

1. That [name of employer defendant] took reasonable steps to prevent and correct workplace sexual harassment;
2. That [name of plaintiff] unreasonably failed to use the preventive and corrective measures for sexual harassment that [name of employer defendant] provided; and
3. That the reasonable use of [name of employer defendant]’s procedures would have prevented some or all of [name of plaintiff]’s harm.

You should consider the reasonableness of [name of plaintiff]’s actions in light of the circumstances facing [him/her/nonbinary pronoun] at the time, including [his/her/nonbinary pronoun] ability to report the conduct without facing undue risk, expense, or humiliation.

If you decide that [name of employer defendant] has proved this claim, you should not include in your award of damages the amount of damages that [name of plaintiff] could have reasonably avoided.

New April 2004; Revised December 2011, December 2015, May 2020

Directions for Use

Give this instruction if the employer asserts the affirmative defense of “avoidable consequences.” The essence of the defense is that the employee could have avoided part or most of the harm had the employee taken advantage of procedures that the employer had in place to address sexual harassment in the workplace. The

avoidable-consequences doctrine is a defense only to damages, not to liability. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1045 [6 Cal.Rptr.3d 441, 79 P.3d 556].) For other instructions that may also be given on failure to mitigate damages generally, see CACI No. 3963, Affırmative Defense—Employee’s Duty to Mitigate Damages, and CACI No. 3930, Mitigation of Damages (Personal Injury).

Whether this defense may apply to claims other than for supervisor sexual harassment has not been clearly addressed by the courts. It has been allowed against a claim for age discrimination in a constructive discharge case. (See Rosenfeld v.

Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886, 900–901

[172 Cal.Rptr.3d 465].)

Sources and Authority

• “[W]e conclude that under the FEHA, an employer is strictly liable for all acts of sexual harassment by a supervisor. But strict liability is not absolute liability in the sense that it precludes all defenses. Even under a strict liability standard, a plaintiff’s own conduct may limit the amount of damages recoverable or bar recovery entirely.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1042, internal citations omitted.)
  • “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. The avoidable consequences doctrine is part of the law of damages; thus, it affects only the remedy available. If the employer establishes that the employee, by taking reasonable steps to utilize employer-provided complaint procedures, could have caused the harassing conduct to cease, the employer will nonetheless remain liable for any compensable harm the employee suffered before the time at which the harassment would have ceased, and the employer avoids liability only for the harm the employee incurred thereafter.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1045, internal citation omitted.)
  • “Under the avoidable consequences doctrine as recognized in California, a person injured by another’s wrongful conduct will not be compensated for damages that the injured person could have avoided by reasonable effort or expenditure. The reasonableness of the injured party’s efforts must be judged in light of the situation existing at the time and not with the benefit of hindsight. ‘The standard by which the reasonableness of the injured party’s efforts is to be measured is not as high as the standard required in other areas of law.’ The defendant bears the burden of pleading and proving a defense based on the avoidable consequences doctrine.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1043, internal citations omitted.)
  • “Although courts explaining the avoidable consequences doctrine have sometimes written that a party has a ‘duty’ to mitigate damages, commentators have criticized the use of the term ‘duty’ in this context, arguing that it is more accurate to state simply that a plaintiff may not recover damages that the plaintiff could easily have avoided.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1043, internal citations omitted.)
  • “We hold . . . that in a FEHA action against an employer for hostile environment sexual harassment by a supervisor, an employer may plead and prove a defense based on the avoidable consequences doctrine. In this particular context, the defense has three elements: (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 that the employee suffered.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1044.)

• “This defense will allow the employer to escape liability for those damages, and only those damages, that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer’s internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1044, internal citations omitted.)
• “If the employer establishes that the employee, by taking reasonable steps to utilize employer-provided complaint procedures, could have caused the harassing conduct to cease, the employer will nonetheless remain liable for any compensable harm the employee suffered before the time at which the harassment would have ceased, and the employer avoids liability only for the harm the employee incurred thereafter.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1045, internal citations omitted.)
• “We stress also that the holding we adopt does not demand or expect that employees victimized by a supervisor’s sexual harassment must always report such conduct immediately to the employer through internal grievance mechanisms. The employer may lack an adequate antiharassment policy or adequate procedures to enforce it, the employer may not have communicated the policy or procedures to the victimized employee, or the employee may reasonably fear reprisal by the harassing supervisor or other employees. Moreover, in some cases an employee’s natural feelings of embarrassment, humiliation, and shame may provide a sufficient excuse for delay in reporting acts of sexual harassment by a supervisor.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1045.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1798

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer Liability For Workplace Harassment, ¶¶ 10:360, 10:361, 10:365–10:367, 10:371, 10:375 (The Rutter Group)

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.81[7][c], 41.92A (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.36[2][a], 115.54[3] (Matthew Bender)

Sexual Harassment- Quid Pro Quo- Wrongful Termination Additional

Sexual Harassment- Quid Pro Quo

In California, the law surrounding sexual harassment and quid pro quo sexual harassment in the workplace is comprehensive and strictly enforced. These forms of harassment have significant legal consequences, especially when they intersect with wrongful termination.

Sexual Harassment in California

1. Definition: Sexual harassment in the workplace includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.
2. Legal Framework: Governed primarily by the California Fair Employment and Housing Act (FEHA), it applies to employers with five or more employees and covers all types of workers, including part-time and independent contractors.

Quid Pro Quo Sexual Harassment

1. Definition: Quid pro quo (literally “this for that”) sexual harassment occurs when submission to sexual conduct is explicitly or implicitly made a condition for employment decisions (e.g., hiring, promotion, retention).
2. Direct Impact on Employment: This type of harassment is characterized by a direct link between accepting or rejecting sexual advances and employment decisions.

Legal Consequences

1. For Employers: Employers can face severe penalties, including compensatory damages (emotional distress, medical expenses), punitive damages, and attorney fees. There’s also reputational damage and potential impacts on business operations.
2. For Employees: Victims of sexual or quid pro quo harassment can suffer significant emotional and psychological harm, career setbacks, and financial losses.

Problems and Challenges

1. Proof and Perception: Establishing concrete evidence of sexual harassment, especially in quid pro quo cases, can be challenging. Perceptions of what constitutes harassment can vary.
2. Power Dynamics: The power imbalance in quid pro quo situations can deter victims from coming forward due to fear of retaliation or disbelief.
3. Retaliation and Wrongful Termination: Victims may face retaliation, including wrongful termination, for rejecting advances or reporting harassment.
4. Employer Liability and Knowledge: Determining whether an employer knew or should have known about the harassment and failed to take appropriate action can be complex.

Examples

1. Quid Pro Quo Example: An employee is promised a promotion in return for going on a date with their manager. When the employee refuses, they are demoted. This is a clear case of quid pro quo sexual harassment.
2. Sexual Harassment Leading to Wrongful Termination: An employee repeatedly faces sexual jokes and comments from coworkers. After complaining to HR, they are terminated under the guise of performance issues. This could constitute both sexual harassment and wrongful termination.

Conclusion

In California, sexual harassment and quid pro quo harassment in the workplace are taken seriously, with strict laws to protect employees and hold employers accountable. These situations can lead to complex legal battles, requiring victims to provide substantial proof. The consequences for employers can be severe, emphasizing the need for robust harassment policies and training. For employees, understanding their rights and the nuances of these laws is crucial. Given the complexities, legal advice is often essential for both employees and employers navigating these issues.

__________________

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Additional Information

Sexual Harassment in California: Sexual harassment is a form of sex discrimination that is prohibited under both federal and California state law. In California, it is primarily governed by the California Fair Employment and Housing Act (FEHA) and Title VII of the federal Civil Rights Act of 1964.

1. Definition of Sexual Harassment:

• Hostile Work Environment: Sexual harassment can occur when unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature create a hostile or intimidating work environment. This can include offensive jokes, inappropriate comments, or unwanted advances.
• Quid Pro Quo: Quid pro quo sexual harassment, on the other hand, involves a situation where a supervisor or person in authority conditions employment benefits, such as promotions or job security, on the submission to sexual advances or favors.

2. Legal Consequences:

• Civil Liability: If an employer is found liable for sexual harassment in California, they can face significant civil penalties, including damages for emotional distress, lost wages, punitive damages, and attorney’s fees.
• Criminal Liability: In some cases, especially those involving severe sexual misconduct or assault, the harasser may also face criminal charges under California law.
• Employer Liability: Employers can be held liable for the actions of their employees, including supervisors, under the doctrine of “vicarious liability.” Employers are required to take reasonable steps to prevent and promptly correct any harassment.

3. Reporting and Investigating Sexual Harassment:

• Employers are required to have clear policies and procedures for reporting and investigating sexual harassment claims.
• Employees who believe they are being sexually harassed should report the behavior to their supervisor or HR department. If the supervisor is the harasser, they can report it to a higher authority within the organization.
• Employers are required to conduct a prompt and thorough investigation of the complaint and take appropriate corrective action if harassment is substantiated.

Problems That Could Arise:

Several issues can arise in the context of sexual harassment, wrongful termination, and employment law in California:

1. Retaliation: Employers are prohibited from retaliating against employees who report sexual harassment. If an employee is wrongfully terminated or faces adverse employment actions after reporting harassment, they may have a separate claim for retaliation.

Example: If an employee reports sexual harassment by a supervisor and is subsequently demoted or fired, they may have a valid retaliation claim.

2. Employer Liability: Determining whether an employer took reasonable steps to prevent and address harassment can be complex. Failure to have adequate policies, training, or an effective reporting mechanism can result in employer liability.

Example: If an employer failed to provide anti-harassment training to employees and did not take appropriate action when harassment was reported, they could be held liable for the harassment.

3. Defenses: Employers may raise defenses such as claiming they had no knowledge of the harassment or that they took prompt and effective corrective action. However, the effectiveness of these defenses can vary based on the specific circumstances of each case.

Example:

If an employer can demonstrate that they promptly investigated and addressed a harassment complaint as soon as they became aware of it, they may have a stronger defense.

Conclusion

In conclusion, sexual harassment and quid pro quo sexual harassment are serious violations of employment law in California. Employers must have robust policies in place to prevent, report, and address harassment promptly. Employees who believe they have been subjected to harassment should report it promptly and seek legal advice to protect their rights. Wrongful termination in the context of sexual harassment can lead to significant legal consequences for employers, including civil and potentially criminal liability.

_______________________________

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2520. Quid pro quo Sexual Harassment—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] subjected [him/her/nonbinary pronoun] to sexual harassment. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [was an employee of [name of defendant]/ applied to [name of defendant] for a job/was a person providing services pursuant to a contract with [name of defendant]];
2. That [name of alleged harasser] made unwanted sexual advances to [name of plaintiff] or engaged in other unwanted verbal or physical conduct of a sexual nature;
3. That terms of employment, job benefits, or favorable working conditions were made contingent, by words or conduct, on [name of plaintiff]’s acceptance of [name of alleged harasser]’s sexual advances or conduct;
4. That at the time of [his/her/nonbinary pronoun] conduct, [name of alleged harasser] was a supervisor or agent for [name of defendant];
5. That [name of plaintiff] was harmed; and
6. That [name of alleged harasser]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003; Revised December 2015

Directions for Use

Employers may be liable for the conduct of certain agents. (See Gov. Code,

§§ 12925(d), 12926(d), 12940(j)(1); Reno v. Baird (1998) 18 Cal.4th 640, 648 [76

Cal.Rptr.2d 499, 957 P.2d 1333] [California Supreme Court declined to express opinion whether “agent” language in the FEHA merely incorporates respondeat superior principles or has some other meaning]).

Sources and Authority

• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
• “Employer” Defined: Harassment. Government Code section 12940(j)(4)(A).
• “Person Providing Services Under Contract: Harassment. Government Code section 12940(j)(5).
• Sexual Harassment. Cal. Code Regs., tit. 2, § 11034(f)(1).
• “Courts have generally recognized two distinct categories of sexual harassment

claims: quid pro quo and hostile work environment. Quid pro quo harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607 [262 Cal.Rptr. 842], internal citation omitted.)

• “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. To state a cause of action on this theory, it is sufficient to allege that a term of employment was expressly or impliedly conditioned upon acceptance of a supervisor’s unwelcome sexual advances.” (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414 [26 Cal.Rptr.2d 116], internal citations omitted.)
• “Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility

. . . [¶] We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive.” (Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 751, 753–754 [118

S.Ct. 2257, 141 L.Ed.2d 633].)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:150, 7:166, 7:168–7:169, 7:194 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of Law Prohibiting Harassment, ¶¶ 10:18–10:19, 10:22, 10:31 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:40, 10:50 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual Harassment, §§ 3.31–3.35

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.81[1][a], [6] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment

Discrimination, § 115.36[5][b] (Matthew Bender) California Civil Practice: Employment Litigation § 2:55 (Thomson Reuters)

“Severe or Pervasive” Explained, Hostile Work place- Wrongful Termination Additional

“Severe or Pervasive” Explained, Hostile Work place

In California, the concept of a hostile work environment, especially when linked to wrongful termination, is a critical aspect of employment law. The legal framework is primarily governed by the Fair Employment and Housing Act (FEHA) and federal laws like Title VII of the Civil Rights Act of 1964.

Legal Framework in California

1. Definition of Hostile Work Environment: A hostile work environment is created when an employee experiences severe and pervasive conduct that a reasonable person would find hostile or abusive, and which affects the employee’s ability to perform their job. This conduct can be based on race, gender, religion, national origin, age, disability, sexual orientation, or other protected characteristics.
2. Severe and Pervasive Standard: For conduct to be considered severe and pervasive, it must go beyond mere offensive utterances and be sufficiently frequent or severe to create an objectively hostile or abusive work environment.
3. Wrongful Termination Connection: Wrongful termination in the context of a hostile work environment occurs when an employee is terminated for reasons related to the hostile environment, such as complaining about the harassment, or when the environment becomes so intolerable that the employee is forced to resign (constructive discharge).
4. Employer Liability: Employers are liable for a hostile work environment created by supervisors. They can also be liable for conduct by co-workers or non-employees if they knew or should have known about the harassment and failed to take immediate and appropriate corrective action.

Potential Problems and Challenges

1. Proving Severity and Pervasiveness: Demonstrating that the conduct was both severe and pervasive enough to legally constitute a hostile work environment can be challenging. It often requires a pattern of behavior rather than isolated incidents.
2. Subjectivity: The assessment of what is considered hostile or abusive can be subjective and varies from case to case, depending on the circumstances and the individuals involved.
3. Retaliation and Wrongful Termination Claims: Establishing a direct link between complaints about the hostile work environment and subsequent termination can be complex. Employers may argue that the termination was based on legitimate, non-discriminatory reasons.
4. Documentation and Evidence: Collecting and presenting evidence to support the existence of a hostile work environment and its connection to wrongful termination is often difficult, especially in cases where the harassment is subtle or not documented.

Examples

1. Racially Charged Hostile Environment: An employee repeatedly faces racial slurs and derogatory comments from supervisors and colleagues. After complaining to HR, they are demoted and eventually terminated. This could constitute wrongful termination stemming from a racially charged hostile work environment.
2. Sexual Harassment and Constructive Discharge: A female employee faces continuous, unwelcome sexual advances and lewd comments from her manager. The situation becomes so unbearable that she feels compelled to resign. This could be a case of constructive discharge due to a hostile work environment.
3. Disability-Based Hostility Leading to Termination: An employee with a disability is constantly mocked for their limitations. After filing a complaint, they face increased scrutiny and are eventually terminated for minor mistakes. This could be seen as wrongful termination linked to a hostile work environment.

Conclusion

Creating a hostile work environment based on severe and pervasive conduct is unlawful in California. Such environments not only violate anti-discrimination laws but can also lead to claims of wrongful termination, particularly when employees are terminated for opposing such conduct or are forced to leave due to the intolerability of the situation. The complexities in proving a hostile work environment and its link to wrongful termination make these cases particularly challenging. Employers must foster a workplace free of harassment and discrimination and respond promptly and effectively to complaints. Employees should be aware of their rights and the protections available under the law, keeping detailed records of any incidents contributing to a hostile work environment.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2524. “Severe or Pervasive” Explained

“Severe or pervasive” means conduct that alters the conditions of employment and creates a work environment that is hostile, intimidating, offensive, oppressive, or abusive.

In determining whether the conduct was severe or pervasive, you should consider all the circumstances, including any or all of the following:

• The nature of the conduct;
• How often, and over what period of time, the conduct occurred;
• The circumstances under which the conduct occurred;
• Whether the conduct was physically threatening or humiliating.

[Name of plaintiff] does not have to prove that [his/her/nonbinary pronoun] productivity has declined. It is sufficient to prove that a reasonable person who was subjected to the harassing conduct would find that the conduct so altered working conditions as to make it more difficult to do the job.

[A single incident can be sufficiently severe or pervasive to constitute harassment.]

New September 2003; Revised December 2007, July 2019

Directions for Use

Read this instruction with any of the Work Environment Harassment instructions (CACI Nos. 2521A, 2521B, 2521C, 2522A, 2522B, and 2522C). Read also CACI

No. 2523, “Harassing Conduct” Explained. Give the last optional sentence if a single incident forms the basis of the claim. (See Gov. Code, § 12923(b) [single incident of harassing conduct can be sufficient to create a triable issue regarding the existence of a hostile work environment].)

In determining what constitutes “sufficiently pervasive” harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610 [262 Cal.Rptr. 842].) Whether this limitation remains in light of Government Code section 12923 is not clear.

Sources and Authority

• “We have agreed with the United States Supreme Court that, to prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. The

working environment must be evaluated in light of the totality of the circumstances: ‘[W]hether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include 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.’ ” (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462 [30 Cal.Rptr.3d 797, 115 P.3d 77], internal citations omitted.)

• “[T]he adjudicator’s inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff’s work performance. To show such interference, ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’ It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’ ” (Harris v. Forklift Sys. (1993) 510 U.S. 17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov. Code, § 12923(a) endorsing this language as reflective of California law.)
  • “For sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’ . . . [¶] ‘Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.’ . . . California courts have adopted the same standard in evaluating claims under the FEHA.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129–130 [87

Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)

• “Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance . . . and that she was actually offended . . . . The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609–610 [262 Cal.Rptr. 842], internal citation omitted.)
  • “The United States Supreme Court . . . has clarified that conduct need not seriously affect an employee’s psychological well-being to be actionable as abusive work environment harassment. So long as the environment reasonably would be perceived, and is perceived, as hostile or abusive, there is no need for

it also to be psychologically injurious.” (Kelly-Zurian v. Wohl Shoe Co., Inc.

(1994) 22 Cal.App.4th 397, 412 [27 Cal.Rptr.2d 457], internal citations omitted.)

• “As the Supreme Court recently reiterated, in order to be actionable, ‘. . . a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.’ The work environment must be viewed from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’ This determination requires judges and juries to exercise ‘[c]ommon sense, and an appropriate sensitivity to social context’ in order to evaluate whether a reasonable person in the plaintiff’s position would find the conduct severely hostile or abusive.” (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 518–519 [76 Cal.Rptr.2d 547], internal citations omitted.)
• “The requirement that the conduct be sufficiently severe or pervasive to create a working environment a reasonable person would find hostile or abusive is a crucial limitation that prevents sexual harassment law from being expanded into a ‘general civility code.’ ” (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377 [62 Cal.Rptr.3d 200], internal citations omitted.)
• “[T]he jury only needed to find the harassing conduct to be either severe or pervasive . . . .” (Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, 40 [235 Cal.Rptr.3d 262].)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 363, 370

Chin, et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:160–10:249 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.68, 2.75, Sexual and Other Harassment, §§ 3.1, 3.17, 3.36–3.41

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.80[1][a], 41.81[1][b] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g][i] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender) California Civil Practice: Employment Litigation, § 2:56 (Thomson Reuters)

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Harassing Conduct Defined- Wrongful Termination Additional

Harassing Conduct Defined

In California, employment law, particularly under the Fair Employment and Housing Act (FEHA), recognizes various forms of harassing conduct that can relate to wrongful termination.

Types of Harassing Conduct

1. Sexual Harassment: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. This includes quid pro quo harassment (where submission to such conduct is made a condition of employment) and creating a hostile work environment.
   • Example: A supervisor making continued advancements towards an employee, implying that their job security depends on their compliance. If the employee is terminated after rejecting such advances, it could be considered wrongful termination.
2. Racial Harassment: Derogatory comments, jokes, or slurs based on race or ethnicity. This also includes displaying racially offensive symbols.
   • Example: An employee consistently faces racial jokes and comments. Upon complaining or resisting such behavior, if they face termination, it would exemplify wrongful termination due to racial harassment.
3. Gender-Based Harassment: Discriminatory treatment or offensive comments based on gender, including gender identity and expression.
   • Example: Persistent derogatory remarks about an employee’s gender. If these remarks lead to an employee’s dismissal, either directly or through creating a hostile environment, it constitutes wrongful termination.
4. Disability Harassment: Mocking or belittling an individual because of their disability or perceived disability.
   • Example: An employee with a disability is constantly ridiculed about their condition. If they’re terminated, possibly under the guise of performance issues stemming from their disability, it could be seen as wrongful termination.
5. Age-Based Harassment: Negative comments or actions based on an employee’s age, particularly targeting older employees.
   • Example: Repeatedly making derogatory comments about an employee’s age, leading to their eventual termination, could be a case of wrongful termination related to age-based harassment.
6. Religious Harassment: Insults, derogatory comments, or unequal treatment based on religious beliefs or practices.
   • Example: An employee is harassed for wearing religious attire or for their religious practices. If they are terminated due to their complaints about this harassment, it could be wrongful termination.
7. Sexual Orientation Harassment: Harassment based on someone’s real or perceived sexual orientation.
   • Example: An employee faces derogatory comments about their sexual orientation and is later fired after raising concerns, suggesting wrongful termination.
8. Retaliation for Complaints: Targeting employees for participating in harassment investigations or for filing harassment complaints.
   • Example: An employee who reports harassment and then faces negative job consequences, culminating in termination, could be a victim of retaliatory wrongful termination.

Conclusion

In each of these examples, the key element is the link between the harassing conduct and the termination. Wrongful termination in the context of harassment is established when an employee’s termination is directly or indirectly a result of their response to, or the existence of, harassing behavior. This link can be challenging to prove but is central to such legal claims in California. Employers must be vigilant in preventing harassment and ensuring that termination decisions are not influenced by discriminatory factors. Employees, on the other hand, should be aware of their rights and the protections afforded to them under California law.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2523. “Harassing Conduct” Explained

Harassing conduct may include, but is not limited to, [any of the following:]

[a. Verbal harassment, such as obscene language, demeaning comments, slurs, [or] threats [or] [describe other form of verbal harassment];] [or]

[b. Physical harassment, such as unwanted touching, assault, or physical interference with normal work or movement;] [or]

[c. Visual harassment, such as offensive posters, objects, cartoons, or drawings;] [or]

[d.  Unwanted sexual advances;] [or]

[e. [Describe other form of harassment if appropriate, e.g., derogatory, unwanted, or offensive photographs, text messages, Internet postings].]

New September 2003; Revised December 2007, December 2015

Directions for Use

Read this instruction with CACI No. 2521A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Employer or Entity Defendant; CACI No. 2521B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Employer or Entity Defendant; CACI No. 2522A, Work Environment Harassment—Conduct Directed at Plaintiff—Essential Factual Elements—Individual Defendant; or CACI No. 2522B, Work Environment Harassment—Conduct Directed at Others—Essential Factual Elements—Individual Defendant. Read also CACI No. 2524, “Severe or Pervasive” Explained, if appropriate.

Sources and Authority

• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
• “Harassment” Defined. Cal. Code Regs., tit. 2, § 11019(b)(2).
• “Harassment is distinguishable from discrimination under the FEHA. ‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.’ ” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869 [172 Cal.Rptr.3d 732].)
• “[H]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of

necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer’s business or performance of the supervisory employee’s job.” (Reno v. Baird (1998) 18 Cal.4th 640, 645–646 [76 Cal.Rptr.2d 499, 957 P.2d 1333],

internal citations omitted.)

• “No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct.” (Serri, supra, 226 Cal.App.4th at p. 869.)
• “We conclude, therefore, that the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.” (Reno, supra, 18 Cal.4th at pp. 646–647, internal citation omitted.)
• “[W]e can discern no reason why an employee who is the victim of discrimination based on some official action of the employer cannot also be the victim of harassment by a supervisor for abusive messages that create a hostile working environment, and under the FEHA the employee would have two separate claims of injury.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707

[101 Cal.Rptr.3d 773, 219 P.3d 749].)

• “Here, [plaintiff]’s discrimination claim sought compensation for official employment actions that were motivated by improper bias. These discriminatory actions included not only the termination itself but also official employment actions that preceded the termination, such as the progressive disciplinary warnings and the decision to assign [plaintiff] to answer the office telephones during office parties. [Plaintiff]’s harassment claim, by contrast, sought compensation for hostile social interactions in the workplace that affected the workplace environment because of the offensive message they conveyed to [plaintiff]. These harassing actions included [supervisor]’s demeaning comments to [plaintiff] about her body odor and arm sores, [supervisor]’s refusal to respond to [plaintiff]’s greetings, [supervisor]’s demeaning facial expressions and gestures

toward [plaintiff], and [supervisor]’s disparate treatment of [plaintiff] in handing out small gifts. None of these events can fairly be characterized as an official employment action. None involved [supervisor]’s exercising the authority that [employer] had delegated to her so as to cause [employer], in its corporate capacity, to take some action with respect to [plaintiff]. Rather, these were events that were unrelated to [supervisor]’s managerial role, engaged in for her own purposes.” (Roby, supra, 47 Cal.4th at pp. 708–709, original italics, footnote omitted.)

• “[S]ome official employment actions done in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias. Here, some actions that [supervisor] took with respect to [plaintiff] are best characterized as official employment actions rather than hostile social interactions in the workplace, but they may have contributed to the hostile message that [supervisor] was expressing to [plaintiff] in other, more explicit ways. These would include [supervisor]’s shunning of [plaintiff] during staff meetings, [supervisor]’s belittling of [plaintiff]’s job, and [supervisor]’s reprimands of [plaintiff] in front of [plaintiff]’s coworkers. Moreover, acts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager were similarly motivated by discriminatory animus.” (Roby, supra, 47 Cal.4th at p. 709.)
  • “[A]busive conduct that is not facially sex specific can be grounds for a hostile environment sexual harassment claim if it is inflicted because of gender, i.e., if men and women are treated differently and the conduct is motivated by gender bias.” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 130 [129 Cal.Rptr.3d 384], original italics.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-B, Sexual Harassment, ¶¶ 10:125–10:155 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and Other Harassment, §§ 3.13, 3.36

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.80[1][a][i] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)

California Civil Practice: Employment Litigation §§ 2:56, 2:56.50 (Thomson Reuters)

___________________

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Harassment by a Supervisor

2525. Harassment—“Supervisor” Defined (Gov. Code, § 12926(t))

[Name of alleged harasser] was a supervisor of [name of defendant] if [he/ she/nonbinary pronoun] had any of the following:

1. The authority to hire, transfer, promote, assign, reward, discipline, [or] discharge [or] [insert other employment action] other employees [or effectively to recommend any of these actions];
2. The responsibility to act on other employees’ grievances [or effectively to recommend action on grievances]; or
3. The responsibility to direct other employees’ daily work activities.

[Name of alleged harasser]’s exercise of this authority or responsibility must not be merely routine or clerical, but must require the use of independent judgment.

New September 2003; Revised June 2006, December 2015, December 2022

Directions for Use

The FEHA’s definition of “supervisor” refers to the “authority” for factor (a) and the “responsibility” for factors (b) and (c). The difference, if any, between “authority” and “responsibility” as used in the statute is not clear. The FEHA’s definition of “supervisor” also expressly refers to authority and responsibility over “other employees.” (Gov. Code, § 12926(t).) The statute further requires that “the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” (See Gov. Code, § 12926(t), italics added.) However, at least one court has found the independent-judgment requirement to be applicable to the responsibility for factor (c). (See Chapman v. Enos (2004) 116 Cal.App.4th 920, 930−931 [10 Cal.Rptr.3d 852], italics added.) Therefore, the last sentence of the instruction refers to “authority or responsibility.”

Sources and Authority

• Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).
• “Supervisor” Defined. Government Code section 12926(t).
• “The FEHA imposes two standards of employer liability for sexual harassment, depending on whether the person engaging in the harassment is the victim’s supervisor or a nonsupervisory coemployee. The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action. This is a negligence standard. Because the FEHA imposes this negligence standard only for harassment ‘by an employee
•  

other than an agent or supervisor’ by implication the FEHA makes the employer strictly liable for harassment by a supervisor.” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040–1041 [6 Cal.Rptr. 3d 441, 79 P.3d 556], internal citations omitted.)

• “Unlike discrimination in hiring, the ultimate responsibility for which rests with the employer, sexual or other harassment perpetrated by a supervisor with the power to hire, fire and control the victimized employee’s working conditions is a particularly personal form of the type of discrimination which the Legislature sought to proscribe when it enacted the FEHA.” (Matthews v. Superior Court (1995) 34 Cal.App.4th 598, 605–606 [40 Cal.Rptr.2d 350].)
• “This section has been interpreted to mean that the employer is strictly liable for the harassing actions of its supervisors and agents, but that the employer is only liable for harassment by a coworker if the employer knew or should have known of the conduct and failed to take immediate corrective action. Thus, characterizing the employment status of the harasser is very significant.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1046 [58 Cal.Rptr.2d 122], internal citations omitted.)
• “The case and statutory authority set forth three clear rules. First, . . . a supervisor who personally engages in sexually harassing conduct is personally liable under the FEHA. Second, . . . if the supervisor participates in the sexual harassment or substantially assists or encourages continued harassment, the supervisor is personally liable under the FEHA as an aider and abettor of the harasser. Third, under the FEHA, the employer is vicariously and strictly liable for sexual harassment by a supervisor.” (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1327 [58 Cal.Rptr.2d 308].)
• “[W]hile an employer’s liability under the [FEHA] for an act of sexual harassment committed by a supervisor or agent is broader than the liability created by the common law principle of respondeat superior, respondeat superior principles are nonetheless relevant in determining liability when, as here, the sexual harassment occurred away from the workplace and not during work hours.” (Doe, supra, 50 Cal.App.4th at pp. 1048–1049.)
• “The FEHA does not define ‘agent.’ Therefore, it is appropriate to consider general principles of agency law. An agent is one who represents a principal in dealings with third persons. An agent is a person authorized by the principal to conduct one or more transactions with one or more third persons and to exercise a degree of discretion in effecting the purpose of the principal. A supervising employee is an agent of the employer.” (Fiol, supra, 50 Cal.App.4th at p. 1328, internal citations omitted.)
• “A supervisor who, without more, fails to take action to prevent sexual harassment of an employee is not personally liable as an aider and abettor of the harasser, an aider and abettor of the employer or an agent of the employer.” (Fiol, supra, 50 Cal.App.4th at p. 1331.)
• “[W]hile full accountability and responsibility are certainly indicia of supervisory

power, they are not required elements of . . . the FEHA definition of supervisor. Indeed, many supervisors with responsibility to direct others using their independent judgment, and whose supervision of employees is not merely routine or clerical, would not meet these additional criteria though they would otherwise be within the ambit of the FEHA supervisor definition.” (Chapman, supra, 116 Cal.App.4th at p. 930, footnote omitted.)

• “Defendants take the position that the court’s modified instruction is, nonetheless, accurate because the phrase ‘responsibility to direct’ is the functional equivalent of being ‘fully accountable and responsible for the performance and work product of the employees… ’ In this, they rely on the

dictionary definition of ‘responsible’ as ‘marked by accountability.’ But as it relates to the issue before us, this definition is unhelpful for two reasons. First, one can be accountable for one’s own actions without being accountable for those of others. Second, the argument appears to ignore the plain language of the statute which itself defines the circumstances under which the exercise of the responsibility to direct will be considered supervisory, i.e., ‘if……………………………………………… [it] is not of a

merely routine or clerical nature, but requires the use of independent judgment.’ ” (Chapman, supra, 116 Cal.App.4th at pp. 930–931.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-A, Sources Of Law Prohibiting Harassment, ¶ 10:17 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer Liability For Workplace Harassment, ¶¶ 10:308, 10:310, 10:315–10:317, 10:321, 10:322 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-E, Harasser’s Individual Liability, ¶ 10:499 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual and Other Harassment, § 4.21

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.80 (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.20, 115.36, 115.54 (Matthew Bender) California Civil Practice: Employment Litigation § 2:56.50 (Thomson Reuters)

Employer’s Failure to Prevent Harassment, Discrimination or Retaliation- Wrongful Termination Additional

Employer’s Failure to Prevent Harassment, Discrimination, or Retaliation in California: Overview, Legal Consequences, and Potential Problems

Introduction:

California has robust employment laws in place to protect workers from harassment, discrimination, and retaliation in the workplace. Employers in the state have a legal duty to take reasonable steps to prevent and address such issues. Failure to do so can lead to severe legal consequences, including wrongful termination claims.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): California’s primary anti-discrimination law is the FEHA. It prohibits employment discrimination, harassment, and retaliation based on various protected characteristics, including race, gender, age, disability, and more.

B. Duty to Prevent: Under the FEHA, employers in California have a legal obligation to take all reasonable steps necessary to prevent and correct discriminatory and harassing conduct in the workplace. This includes implementing anti-discrimination and anti-harassment policies, conducting training, promptly investigating complaints, and taking appropriate corrective actions.

II. Legal Consequences:

A. Wrongful Termination Claims: When an employer fails to prevent harassment, discrimination, or retaliation and an employee is subjected to such conduct, the affected employee may have grounds for a wrongful termination claim. Wrongful termination claims typically assert that the employee was fired in violation of public policy or due to their status as a whistleblower or a protected characteristic.

B. Civil Liability: Employers can face significant civil liability if they fail to prevent workplace misconduct. This may result in monetary damages, including compensatory and punitive damages, as well as legal fees and court costs.

C. Administrative Actions: Regulatory agencies such as the California Department of Fair Employment and Housing (DFEH) can initiate investigations into allegations of an employer’s failure to prevent harassment, discrimination, or retaliation. Employers found in violation may face fines, penalties, and mandatory compliance measures.

III. Potential Problems:

A. Inadequate Policies and Training: Employers may encounter problems if their anti-discrimination and anti-harassment policies are insufficient or if they fail to provide adequate training to employees. Inadequate policies and training can weaken an employer’s defense in the event of a lawsuit.

B. Inconsistent Enforcement: If an employer fails to consistently enforce its anti-discrimination and anti-harassment policies, it may create an environment where misconduct is tolerated. This can lead to legal liability, even if policies are in place.

C. Retaliation Claims: An employer’s failure to prevent retaliation can result in additional legal consequences. Employees who report harassment, discrimination, or other illegal conduct and subsequently face adverse employment actions may bring retaliation claims.

IV. Examples:

1. Example of a Successful Wrongful Termination Claim: An employee reports ongoing racial harassment to their supervisor and HR. The employer fails to take any action to stop the harassment. The employee, unable to endure the hostile work environment any longer, resigns. In this case, the employee may have a strong wrongful termination claim based on constructive discharge due to the employer’s failure to prevent harassment.
2. Example of a Failed Anti-Harassment Training Program: An employer provides anti-harassment training to its employees but does so irregularly and without meaningful content. As a result, employees remain unaware of their rights and obligations. If a harassment incident occurs and the employer relies on its training program as a defense, it may be challenged successfully in court for inadequate prevention efforts.

Conclusion

In conclusion, California’s employment laws place a significant responsibility on employers to prevent harassment, discrimination, and retaliation in the workplace. Failure to do so can lead to severe legal consequences, including wrongful termination claims, civil liability, and administrative actions. To mitigate these risks, employers must establish robust policies, provide thorough training, consistently enforce policies, and promptly address complaints to create a workplace free from harassment and discrimination.

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2527. Failure to Prevent Harassment, Discrimination, or Retaliation—Essential Factual Elements—Employer or Entity Defendant (Gov. Code, § 12940(k))

[Name of plaintiff] claims that [name of defendant] failed to take all reasonable steps to prevent [harassment/discrimination/retaliation] [based on [describe protected status—e.g., race, gender, or age]]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [was an employee of [name of defendant]/ applied to [name of defendant] for a job/was a person providing services under a contract with [name of defendant]];
2. That [name of plaintiff] was subjected to [harassment/discrimination/retaliation] in the course of employment;
3. That [name of defendant] failed to take all reasonable steps to prevent the [harassment/discrimination/retaliation];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s failure to take all reasonable steps to prevent [harassment/discrimination/retaliation] was a substantial factor in causing [name of plaintiff]’s harm.

New June 2006; Revised April 2007, June 2013, December 2015

Directions for Use

Give this instruction after the appropriate instructions in this series on the underlying claim for discrimination, retaliation, or harassment if the employee also claims that the employer failed to prevent the conduct. (See Gov. Code, § 12940(k).) Read the bracketed language in the opening paragraph beginning with “based on” if the claim is for failure to prevent harassment or discrimination.

For guidance for a further instruction on what constitutes “reasonable steps,” see section 11019(b)(4) of Title 2 of the California Code of Regulations.

Sources and Authority

• Prevention of Discrimination and Harassment. Government Code section 12940(k).
• “The employer’s duty to prevent harassment and discrimination is affirmative and mandatory.” (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035 [127 Cal.Rptr.2d 285].)
• “Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate

corrective action that is reasonably calculated to (1) end the current harassment and (2) to deter future harassment. [Citation.] The employer’s obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) that permanent remedial steps be implemented by the employer to prevent future harassment………………………… ” (M.F. v. Pacific Pearl Hotel Management LLC

(2017) 16 Cal.App.5th 693, 701 [224 Cal.Rptr.3d 542].)

• “This section creates a tort that is made actionable by statute. ‘ “ ‘[T]he word “tort” means a civil wrong, other than a breach of contract, for which the law will provide a remedy in the form of an action for damages.’ ‘It is well settled the Legislature possesses a broad authority . . . to establish      tort causes of

action.’ Examples of statutory torts are plentiful in California law.” ’ Section 12960 et seq. provides procedures for the prevention and elimination of unlawful employment practices. In particular, section 12965, subdivision (a) authorizes the Department of Fair Employment and Housing (DFEH) to bring an accusation of an unlawful employment practice if conciliation efforts are unsuccessful, and section 12965, subdivision (b) creates a private right of action for damages for a complainant whose complaint is not pursued by the DFEH.” (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286 [73 Cal.Rptr.2d 596], internal citations omitted.)

• “With these rules in mind, we examine the section 12940 claim and finding with regard to whether the usual elements of a tort, enforceable by private plaintiffs, have been established: Defendants’ legal duty of care toward plaintiffs, breach of duty (a negligent act or omission), legal causation, and damages to the plaintiff.” (Trujillo, supra, 63 Cal.App.4th at pp. 286–287, internal citation omitted.)
• “[W]hether an employer sufficiently complied with its mandate to ‘take immediate and appropriate corrective action’ is a question of fact.” (M.F., supra, 16 Cal.App.5th at p. 703, internal citation omitted.)
• “[C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k).” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314 [184

Cal.Rptr.3d 774].)

• “Also, there is a significant question of how there could be legal causation of any damages (either compensatory or punitive) from such a statutory violation, where the only jury finding was the failure to prevent actionable harassment or discrimination, which, however, did not occur.” (Trujillo, supra, 63 Cal.App.4th at p. 289.)
• “[T]he ‘Directions for Use’ to CACI No. 2527 (2015),……. states that the failure

to prevent instruction should be given ‘after the appropriate instructions in this series on the underlying claim for……………………………………… harassment if the employee also claims

that the employer failed to prevent the conduct.’ An instruction on the elements of an underlying sexual harassment claim would be unnecessary if the failure to take reasonable steps necessary to prevent a claim for harassment could be based

7

on harassing conduct that was not actionable harassment.” (Dickson, supra, 234 Cal.App.4th at p. 1317.)

• “In accordance with . . . the fundamental public policy of eliminating discrimination in the workplace under the FEHA, we conclude that retaliation is a form of discrimination actionable under [Gov. Code] section 12940, subdivision (k).” (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1240 [51 Cal.Rptr.3d 206], disapproved on other grounds in Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 [72 Cal.Rptr.3d 624, 177 P.3d 232].)
  • “[Defendant] suggests that a separate element in CACI No. 2527 requiring [plaintiff] to prove that the failure to prevent discrimination or retaliation was ‘a substantial factor in causing her harm’ is equivalent to the disputed element in the other CACI instructions requiring [plaintiff] to prove that her pregnancy- related leave was ‘a motivating reason’ for her discharge. However, the ‘substantial factor in causing harm’ element in CACI No. 2527 does not concern the causal relationship between the adverse employment action and the plaintiff’s protected status or activity. Rather, it concerns the causal relationship between the discriminatory or retaliatory conduct, if proven, and the plaintiff’s injury.” (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 480 [161 Cal.Rptr.3d 758].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1025, 1026

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment and Housing Act, ¶¶ 7:670–7:672 (The Rutter Group)

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.02[6], 41.80[1], 41.81[7] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[10][g] (Matthew Bender)

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2528. Failure to Prevent Harassment by Nonemployee (Gov. Code,§ 12940(j))

[Name of plaintiff] claims that [name of defendant] failed to take reasonable steps to prevent harassment based on [his/her/nonbinary pronoun] [describe protected status, e.g., race, gender, or age] by a nonemployee. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [was an employee of [name of defendant]/ applied to [name of defendant] for a job/was an unpaid [intern/ volunteer] for [name of defendant]/was a person providing services under a contract with [name of defendant]];
2. That while in the course of employment, [name of plaintiff] was subjected to harassment based on [his/her/nonbinary pronoun] [e.g., race] by [name], who was not an employee of [name of defendant];
3. That [name of defendant] knew or should have known that the nonemployee’s conduct placed employees at risk of harassment;
4. That [name of defendant] failed to take immediate and appropriate [preventive/corrective] action;
5. That the ability to take [preventive/corrective] action was within the control of [name of defendant];
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s failure to take immediate and appropriate steps to [prevent/put an end to] the harassment was a substantial factor in causing [name of plaintiff]’s harm.

New November 2018; Revised January 2019

Directions for Use

Give this instruction on a claim against the employer for failure to prevent harassment by a nonemployee. The FEHA protects not only employees, but also applicants, unpaid interns or volunteers, and persons providing services under a contract (element 1). (Gov. Code, § 12940(j)(1).) Modify references to employment in elements 2 and 3 as necessary if the plaintiff’s status is other than an employee. Note that unlike claims for failure to prevent acts of a co-employee (see Gov. Code,

§ 12940(k)), only harassment is covered. (Gov. Code, § 12940(j)(1).) If there is such a thing as discrimination or retaliation by a nonemployee, there is no employer duty to prevent it under the FEHA.8

The employer’s duty is to “take immediate and appropriate corrective action.” (Gov. Code § 12940(j)(1).) In contrast, for the employer’s failure to prevent acts of an employee, the duty is to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940(k).)

Whether the employer must prevent or later correct the harassing situation would seem to depend on the facts of the case. If the issue is to stop harassment from recurring after becoming aware of it, the employer’s duty would be to “correct” the problem. If the issue is to address a developing problem before the harassment occurs, the duty would be to “prevent” it. Choose the appropriate words in elements 4, 5, and 7 depending on the facts.

Sources and Authority

• Prevention of Harassment by a Nonemployee. Government Code section 12940(j)(1).
  • Prevention of Discrimination and Harassment. Government Code section 12940(k).
  • “The FEHA provides: ‘An employer may . . . be responsible for the acts of nonemployees, with respect to sexual harassment of employees . . . , where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered.’ . . . ’ A plaintiff cannot state a claim for failure to prevent harassment unless the plaintiff first states a claim for harassment.” (M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 700-701 [224 Cal.Rptr.3d 542].)
  • “Once an employer is informed of the sexual harassment, the employer must take adequate remedial measures. The measures need to include immediate corrective action that is reasonably calculated to (1) end the current harassment and (2) to deter future harassment. [Citation.] The employer’s obligation to take prompt corrective action requires (1) that temporary steps be taken to deal with the situation while the employer determines whether the complaint is justified and (2) that permanent remedial steps be implemented by the employer to prevent future harassment . . . .” (M.F., supra, 16 Cal.App.5th at p. 701.)
  • “[T]he language of section 12940, subdivision (j)(1), does not limit its application to a particular fact pattern. Rather, the language of the statute provides for liability whenever an employer (1) knows or should know of sexual harassment by a nonemployee and (2) fails to take immediate and appropriate remedial action (3) within its control. (M.F., supra, 16 Cal.App.5th at p. 702.)
  • “[W]hether an employer sufficiently complied with its mandate to ‘take immediate and appropriate corrective action’ is a question of fact.” (M.F., supra, 16 Cal.App.5th at p. 703, internal citation omitted.)
  • “The more egregious the abuse and the more serious the threat of which the

employer has notice, the more the employer will be required under a standard of reasonable care to take steps for the protection of likely future victims.” (M.F., supra, 16 Cal.App.5th at p. 701.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§§ 363, 370

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1019, 1028, 1035

Constructive Discharge- Intolerable Conditions- Wrongful Termination Additional

Constructive Discharge- Intolerable Conditions

Constructive Discharge in Violation of Public Policy, specifically when the plaintiff is required to endure intolerable conditions that violate public policy, is a significant aspect of wrongful termination and employment law in the state of California. This legal concept arises when an employee is subjected to working conditions so unbearable that they are essentially forced to resign, and these conditions violate fundamental public policy principles. In such cases, the law provides remedies for employees who are forced to endure intolerable conditions that go against established public policy.

Overview of Constructive Discharge in Violation of Public Policy:

1. Definition: Constructive discharge occurs when an employer creates a working environment so hostile, oppressive, or intolerable that a reasonable person in the same situation would feel compelled to resign. In California, constructive discharge claims can be based on various violations of public policy.
2. Violation of Public Policy: To succeed in a constructive discharge claim, the employee must demonstrate that the working conditions that led to their resignation violated a fundamental public policy. Public policy includes laws, regulations, and societal norms that protect employees from harm or discrimination, such as workplace safety, anti-discrimination laws, and laws prohibiting retaliation.

Essential Factual Allegations:

For a successful constructive discharge claim in California, the plaintiff typically needs to prove the following elements:

1. Intolerable Working Conditions: The plaintiff must establish that the working conditions were so intolerable that a reasonable person in their position would find it impossible to continue working under those circumstances. This involves demonstrating the severity and persistence of the adverse conditions.
2. Causation: The plaintiff needs to establish a direct link between the intolerable conditions and their resignation. They must demonstrate that it was the employer’s actions, policies, or negligence that compelled them to resign.
3. Public Policy Violation: The employee must provide evidence that the employer’s actions or the working conditions leading to their resignation violated a fundamental public policy. This could involve pointing to specific statutes, regulations, or established legal principles.
4. Plaintiff’s Reasonable Response: It must be shown that the employee’s resignation was a reasonable response to the intolerable conditions created by the employer. This means the employee didn’t quit arbitrarily but made a logical decision based on the circumstances.

Problems that Could Arise:

Several challenges and complexities may arise in constructive discharge cases in California:

1. Subjective vs. Objective Standard: Determining whether the working conditions were objectively intolerable often involves subjectivity. Different individuals may have varying thresholds for what is intolerable, making it challenging to establish a universal standard.
2. Evidence and Documentation: Proving a constructive discharge claim requires strong evidence of intolerable conditions and a violation of public policy. Documenting incidents, preserving evidence, and having credible witnesses can be crucial.
3. Retaliation: Employers may argue that the employee’s resignation was voluntary and not due to intolerable conditions. They might assert that the employee left for personal reasons or simply didn’t like the job.
4. Defining Public Policy: Determining what constitutes a fundamental violation of public policy can be contentious. Courts must carefully evaluate whether the employer’s actions or policies genuinely contravene established public policy principles.

Examples:

1. Sexual Harassment: An employee experiences persistent and severe sexual harassment at the workplace, and despite reporting it to their employer, no effective action is taken to address the issue. The employee resigns due to the hostile work environment and could claim constructive discharge based on a violation of public policy against sexual harassment.
2. Unsafe Working Conditions: An employee working in a construction company is repeatedly required to work without proper safety equipment, even after reporting safety violations. Fearing for their life and well-being, the employee resigns and claims constructive discharge based on violations of public policy related to workplace safety.

Conclusion

In summary, Constructive Discharge in Violation of Public Policy, where the plaintiff is required to endure intolerable conditions that violate public policy, is a critical aspect of California employment law. It serves as a legal remedy for employees who are effectively forced to resign due to unbearable working conditions that contravene established public policy principles. However, these cases can be legally intricate and factually challenging, requiring careful evaluation of the specific circumstances and evidence presented. Employers must be vigilant in ensuring a safe, non-discriminatory, and compliant work environment to mitigate potential liability for constructive discharge claims.

_______________

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Additional Information

Constructive discharge in violation of public policy in the context of California employment law is a nuanced and complex area.

Legal Framework

1. Definition of Constructive Discharge: Constructive discharge occurs when an employee’s working conditions become so intolerable that they feel compelled to resign. Although not explicitly fired, the circumstances effectively force them to quit.
2. Violation of Public Policy: In California, for a constructive discharge to violate public policy, the intolerable conditions must contravene fundamental policies expressed in constitutional provisions, statutes, or regulations. This typically involves violations of anti-discrimination laws, labor codes, or health and safety regulations.
3. Legal Precedents: California courts have established criteria through various cases, like Turner v. Anheuser-Busch, Inc. (1994), which requires that the working conditions be so unusually adverse that a reasonable person in the employee’s position would feel compelled to resign.

Essential Factual Allegations

1. Intolerable Working Conditions: The employee must demonstrate that the working conditions were objectively intolerable. This goes beyond mere unpleasantness or stress.
2. Employer’s Knowledge or Participation: It must be shown that the employer either deliberately created the conditions or knowingly permitted them to exist.
3. Violation of Specific Public Policies: The employee needs to pinpoint the exact public policy violated by the employer’s actions.
4. Direct Causation: There must be a clear causal link between the intolerable working conditions and the employee’s resignation.

Potential Problems

1. Subjectivity of ‘Intolerable Conditions’: Determining what constitutes intolerable conditions can be subjective and varies case by case, making legal outcomes unpredictable.
2. Proof of Employer’s Intent: Proving that the employer intentionally created or allowed the intolerable conditions can be challenging.
3. Public Policy Ambiguity: Identifying a specific public policy and demonstrating its violation is often complex, as public policies can be broad or ambiguous.
4. Risk of Retaliation Claims: Employers may face retaliation claims if they are perceived to have forced out an employee for complaining about illegal or unethical practices.

Examples and Reasoning

1. Example of Discriminatory Environment: An employee subjected to severe and pervasive racial harassment may resign and claim constructive discharge. The intolerable conditions (racial harassment) violate public policy (anti-discrimination laws).
2. Health and Safety Neglect: An employee who quits due to unsafe working conditions, like exposure to toxic substances without proper safety measures, can argue constructive discharge if these conditions violate occupational safety regulations.
3. Whistleblower Retaliation: An employee resigns after being demoted and harassed for reporting corporate fraud. This could be a constructive discharge, as whistleblower protections are grounded in public policy.

Logic and Reasoning

• The logic behind constructive discharge is to recognize situations where an employer effectively “fires” an employee through intolerable conditions, bypassing legal protections against wrongful termination.
• The requirement for a public policy violation ensures that the law protects significant societal interests, not just personal grievances.
• The criteria for proving constructive discharge aim to balance protecting employees from abusive practices while preventing frivolous claims against employers.

Conclusion

Constructive discharge in violation of public policy in California’s employment law serves as a crucial legal tool for employees facing egregious working conditions that force them to resign. However, its application is complex, requiring clear evidence of intolerable conditions, violation of specific public policies, and a direct causal link to the employee’s resignation. The subjective nature of these criteria and the need for precise legal arguments make navigating such cases challenging for both employees and employers.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2432. Constructive Discharge in Violation of Public Policy—Plaintiff Required to Endure Intolerable Conditions That Violate Public Policy

[Name of plaintiff] claims that [name of defendant] forced [him/her/nonbinary pronoun] to resign for reasons that violate public policy. It is a violation of public policy [specify claim in case, e.g., for an employer to require an employee to work more than forty hours a week for less than minimum wage]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] was employed by [name of defendant];
2. That [name of plaintiff] was subjected to working conditions that violated public policy, in that [describe conditions imposed on the employee that constitute the violation, e.g., “[name of plaintiff] was required to work more than forty hours a week for less than minimum wage”];
3. That [name of defendant] intentionally created or knowingly permitted these working conditions;
4. That these working conditions were so intolerable that a reasonable person in [name of plaintiff]’s position would have had no reasonable alternative except to resign;
5. That [name of plaintiff] resigned because of these working conditions;
6. That [name of plaintiff] was harmed; and
7. That the working conditions were a substantial factor in causing [name of plaintiff]’s harm.

To be intolerable, the adverse working conditions must be unusually aggravated or involve a continuous pattern of mistreatment. Trivial acts are insufficient.

New September 2003; Revised December 2014, June 2015, May 2020

Directions for Use

This instruction should be given if the plaintiff claims that the plaintiff’s constructive termination was wrongful because defendant subjected plaintiff to intolerable working conditions in violation of public policy. The instruction must be supplemented with CACI No. 3903P, Damages From Employer for Wrongful Discharge (Economic Damage). See also CACI No. 2510, “Constructive Discharge” Explained.

The judge should determine whether the purported reason for plaintiff’s resignation would amount to a violation of public policy. (See Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680], overruled on other grounds

in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78 Cal.Rptr.2d 16, 960 P.2d 1046].) The jury should then be instructed that the alleged conduct would constitute a public-policy violation if proved.

Whether conditions are so intolerable as to justify the employee’s decision to quit rather than endure them is to be judged by an objective reasonable-employee standard. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1247 [32

Cal.Rptr.2d 223, 876 P.2d 1022].) This standard is captured in element 4. The paragraph at the end of the instruction gives the jury additional guidance as to what makes conditions intolerable. (See id. at p. 1247.) Note that in some circumstances, a single intolerable incident, such as a crime of violence against an employee by an employer, or an employer’s ultimatum that an employee commit a crime, may constitute a constructive discharge. (Id. at p. 1247, fn. 3.)

Sources and Authority

• “[W]hen an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)
• “[T]his court established a set of requirements that a policy must satisfy to support a tortious discharge claim. First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be ‘fundamental’ and ‘substantial.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890 [66

Cal.Rptr.2d 888, 941 P.2d 1157], footnote omitted.)

• “In addition to statutes and constitutional provisions, valid administrative regulations may also serve as a source of fundamental public policy that impacts on an employer’s right to discharge employees when such regulations implement fundamental public policy found in their enabling statutes.” (D’sa v. Playhut, Inc. (2000) 85 Cal.App.4th 927, 933 [102 Cal.Rptr.2d 495], internal citation omitted.)
• “Plaintiffs assert, in essence, that they were terminated for refusing to engage in conduct that violated fundamental public policy, to wit, nonconsensual sexual acts. They also assert, in effect, that they were discharged in retaliation for attempting to exercise a fundamental right—the right to be free from sexual assault and harassment. Under either theory, plaintiffs, in short, should have been granted leave to amend to plead a cause of action for wrongful discharge in violation of public policy.” (Rojo v. Kliger (1990) 52 Cal.3d 65, 91 [276

Cal.Rptr. 130, 801 P.2d 373].)

• “Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment

relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” (Turner, supra, 7 Cal.4th at pp. 1244–1245, internal citation omitted.)

• “Although situations may exist where the employee’s decision to resign is unreasonable as a matter of law, ‘[w]hether conditions were so intolerable as to justify a reasonable employee’s decision to resign is normally a question of fact. [Citation.]’ ” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 827 [166 Cal.Rptr.3d 242].)
  • “In order to establish a constructive discharge, an employee must plead and prove . . . that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Turner, supra, 7 Cal.4th at p. 1251.)
  • “The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his

or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.” (Turner, supra, 7 Cal.4th at p. 1246.)

• “In order to amount to a constructive discharge, adverse working conditions must be unusually ‘aggravated’ or amount to a ‘continuous pattern’ before the situation will be deemed intolerable. In general, ‘[s]ingle, trivial, or isolated acts of [misconduct] are insufficient’ to support a constructive discharge claim. Moreover, a poor performance rating or a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge” (Turner, supra, 7 Cal.4th at p. 1247, footnote and internal citation omitted.)
  • “The mere existence of illegal conduct in a workplace does not, without more, render employment conditions intolerable to a reasonable employee.” (Turner, supra, 7 Cal.4th at p. 1254.)
  • “[T]he standard by which a constructive discharge is determined is an objective one—the question is ‘whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.’ ” (Turner, supra, 7 Cal.4th at p. 1248, internal citations omitted.)
  • “[U]nder Turner, the proper focus is on the working conditions themselves, not on the plaintiff’s subjective reaction to those conditions.” (Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1272 [227 Cal.Rptr.3d

695], original italics.)

• “The length of time the plaintiff remained on the job may be one relevant factor in determining the intolerability of employment conditions from the standpoint

of a reasonable person.” (Turner, supra, 7 Cal.4th at p. 1254.)

• “[T]here was, as the trial court found, substantial evidence that plaintiff’s age and disability were ‘substantial motivating reason[s]’ for the adverse employment action or actions to which plaintiff was subjected. But the discriminatory motive for plaintiff’s working conditions has no bearing on whether the evidence was sufficient to establish constructive discharge.” (Simers, supra, 18 Cal.App.5th at p. 1271.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§ 235

Chin et al., California Practice Guide: Employment Litigation, Ch. 4-G, Constructive Discharge, ¶¶ 4:405–4:406, 4:409–4:411, 4:421–4:422 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 5-(I)B, Wrongful Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:4, 5:45–5:47, 5:50, 5:70, 5:105, 5:115, 5:150, 5:151, 5:170, 5:195, 5:220 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy Violations, §§ 5.45–5.46

4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, § 60.04 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, §§ 249.15, 249.50 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful Termination and Discipline, §§ 100.31, 100.32, 100.36–100.38 (Matthew Bender) California Civil Practice: Employment Litigation §§ 6:23–6:25 (Thomson Reuters)