- \n
- Definition of Harassment<\/strong>: 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.<\/li>\n\n\n\n
- Wrongful Termination Laws<\/strong>: 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.<\/li>\n\n\n\n
- Protected Classes<\/strong>: California law protects additional classes not covered under federal law, such as sexual orientation, gender identity, and medical condition.<\/li>\n\n\n\n
- Employer Liability<\/strong>: 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.<\/li>\n<\/ol>\n\n\n\n
Potential Problems and Challenges<\/h3>\n\n\n\n
- \n
- Proving Harassment<\/strong>: Establishing that harassment occurred can be challenging. It often relies on subjective experiences and the availability of evidence or witnesses.<\/li>\n\n\n\n
- Retaliation Claims<\/strong>: Employees who face termination after reporting harassment may claim retaliation. Proving a direct link between the complaint and the termination can be complex.<\/li>\n\n\n\n
- Ambiguity in Law<\/strong>: The definition of harassment can be broad and subjective, leading to disputes over what constitutes illegal behavior.<\/li>\n\n\n\n
- Employer Defense<\/strong>: Employers may argue that the termination was based on legitimate, non-discriminatory reasons, complicating the legal battle.<\/li>\n<\/ol>\n\n\n\n
Examples<\/h3>\n\n\n\n
- \n
- Case of Sexual Harassment Leading to Termination<\/strong>: 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.<\/li>\n\n\n\n
- Hostile Work Environment<\/strong>: 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.<\/li>\n\n\n\n
- Discrimination Based on Disability<\/strong>: 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.<\/li>\n<\/ol>\n\n\n\n
Conclusion<\/h3>\n\n\n\n
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.<\/p>\n\n\n\n
<\/p>\n\n\n\n
Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen. <\/p>\n\n\n\n
_______<\/p>\n\n\n\n
Additional Information Harassment in California Employment Law:<\/strong><\/p>\n\n\n\n
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.<\/p>\n\n\n\n
1. Definition of Harassment:<\/strong><\/p>\n\n\n\n
- \n
- Hostile Work Environment:<\/strong> 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.<\/li>\n<\/ul>\n\n\n\n
2. Legal Consequences:<\/strong><\/p>\n\n\n\n
- \n
- Wrongful Termination:<\/strong> 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.<\/li>\n\n\n\n
- Civil Liability:<\/strong> 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.<\/li>\n<\/ul>\n\n\n\n
3. Reporting and Investigating Harassment:<\/strong><\/p>\n\n\n\n
- \n
- 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.<\/li>\n\n\n\n
- Employers are legally obligated to conduct a prompt and thorough investigation of the complaint and take appropriate corrective action if harassment is substantiated.<\/li>\n<\/ul>\n\n\n\n
Problems That Could Arise:<\/strong><\/p>\n\n\n\n
Several issues can arise in the context of harassment, wrongful termination, and employment law in California:<\/p>\n\n\n\n
1. Retaliation:<\/strong> 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.<\/p>\n\n\n\n
Example:<\/strong> If an employee reports racial harassment and is subsequently demoted or fired, they may have a valid retaliation claim.<\/p>\n\n\n\n
2. Employer Liability:<\/strong> 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.<\/p>\n\n\n\n
Example:<\/strong> 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.<\/p>\n\n\n\n
3. Defenses:<\/strong> 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.<\/p>\n\n\n\n
Example:<\/strong> 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.<\/p>\n\n\n\n
<\/p>\n\n\n\n
Conclusion<\/p>\n\n\n\n
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.<\/p>\n\n\n\n
________<\/p>\n\n\n\n
Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen. <\/p>\n\n\n\n
2521A<\/strong>. <\/strong>Work Environment Harassment\u2014Conduct Directed at Plaintiff\u2014Essential Factual Elements\u2014Employer or Entity Defendant (Gov. Code, \u00a7\u00a7 12923, 12940(j))<\/strong><\/strong><\/p>\n\n\n\n
<\/td><\/tr> <\/td> <\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n
[<\/strong>Name of plaintiff<\/em>] claims that [he\/she\/<\/strong>nonbinary pronoun<\/em>] was subjected to harassment based on [his\/her\/<\/strong>nonbinary pronoun<\/em>] [<\/strong>describe protected status, e.g., race, gender, or age<\/em>] at [<\/strong>name of defendant<\/em>] and that this harassment created a work environment that was hostile, intimidating, offensive, oppressive, or abusive.<\/strong><\/strong><\/p>\n\n\n\n
To establish this claim, [<\/strong>name of plaintiff<\/em>] and that this harassment created a work environment that was hostile, intimidating, offensive, oppressive, or abusive.<\/strong><\/strong><\/p>\n\n\n\n
- \n
- <\/strong>That [<\/strong>name of plaintiff<\/em>] 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] [<\/strong>name of defendant<\/em>];<\/strong><\/strong><\/li>\n\n\n\n
- <\/strong>That [<\/strong>name of plaintiff<\/em>] was subjected to harassing conduct because [he\/she\/<\/strong>nonbinary pronoun<\/em>] was [<\/strong>protected status, e.g., a woman<\/em>];<\/strong><\/strong><\/li>\n\n\n\n
- <\/strong>That the harassing conduct was severe or pervasive;<\/strong><\/strong><\/li>\n\n\n\n
- <\/strong>That a reasonable [<\/strong>e.g., woman<\/em>] in [<\/strong>name of plaintiff<\/em>]\u2019s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;<\/strong><\/strong><\/li>\n\n\n\n
- <\/strong>That [<\/strong>name of plaintiff<\/em>] considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive;<\/strong><\/strong><\/li>\n\n\n\n
- <\/strong>[<\/strong>Select applicable basis of defendant\u2019s liability:<\/em>] [That a supervisor engaged in the conduct;] [<\/strong>or<\/em>]<\/strong><\/strong><\/li>\n<\/ol>\n\n\n\n
[That [<\/strong>name of defendant<\/em>] [or [his\/her\/<\/strong>nonbinary pronoun<\/em>\/its] supervisors or agents] knew or should have known of the conduct and failed to take immediate and appropriate corrective action;]<\/strong><\/strong><\/p>\n\n\n\n
- \n
- <\/strong>That [<\/strong>name of plaintiff<\/em>] was harmed; and<\/strong><\/strong><\/li>\n\n\n\n
- <\/strong>That the conduct was a substantial factor in causing [<\/strong>name of plaintiff<\/em>]\u2019s harm.<\/strong><\/strong><\/li>\n<\/ul>\n\n\n\n
<\/td><\/tr> <\/td> Derived from former CACI No. 2521 December 2007; Revised June 2013, December 2015, May 2018, July 2019, May 2020, November 2021<\/em><\/p>\n\n\n\n
<\/p>\n\n\n\n
Directions for Use<\/strong><\/strong><\/p>\n\n\n\n
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, \u00a7 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.<\/em>) If the alleged harassment did not occur in the workplace, the instruction should be modified as appropriate. (See Doe<\/em><\/p>\n\n\n\n
v. Capital Cities <\/em>(1996) 50 Cal.App.4th 1038, 1051 [58 Cal.Rptr.2d 122] [\u201c[A]s long as the harassment occurs in a work-related context, the employer is liable\u201d].)<\/p>\n\n\n\n
For an individual defendant, such as the alleged harasser or plaintiff\u2019s coworker, see CACI No. 2522A, Work Environment Harassment\u2014Conduct Directed at Plaintiff\u2014Essential Factual Elements\u2014Individual Defendant. <\/em>For a case in which the plaintiff is not the target of the harassment, see CACI No. 2521B, Work Environment Harassment\u2014Conduct Directed at Others\u2014Essential Factual Elements\u2014Employer or Entity Defendant. <\/em>For an instruction for use if the hostile environment is due to sexual favoritism, see CACI No. 2521C, Work Environment Harassment\u2014Sexual Favoritism\u2014Essential Factual Elements\u2014Employer or Entity Defendant. <\/em>Also read CACI No. 2523, \u201cHarassing Conduct\u201d Explained<\/em>, and CACI No. 2524, \u201cSevere or Pervasive\u201d Explained<\/em>.<\/p>\n\n\n\n
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, \u00a7 12926(o).)<\/p>\n\n\n\n
In element 6, select the applicable basis of employer liability: (a) strict liability for a supervisor\u2019s harassing conduct, or (b) the employer\u2019s ratification of the conduct. For a definition of \u201csupervisor,\u201d see CACI No. 2525, Harassment\u2014\u201cSupervisor\u201d Defined<\/em>. If there are both employer and individual supervisor defendants (see CACI No. 2522A, Work Environment Harassment\u2014Conduct Directed at Plaintiff\u2014Essential Factual Elements\u2014Individual Defendant<\/em>) 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\u2019s strict liability for supervisor harassment. (State Dept. of Health Servs. v. Superior Court <\/em>(2003) 31 Cal.4th 1026, 1041\u20131042 [6 Cal.Rptr.3d 441, 79 P.3d 556]; see Bihun v. AT&T Information<\/em><\/p>\n\n\n\n
Systems, Inc. <\/em>(1993) 13 Cal.App.4th 976, 1000 [16 Cal.Rptr.2d 787], disapproved on<\/p>\n\n\n\n
other grounds in Lakin v. Watkins Associated Industries <\/em>(1993) 6 Cal.4th 644, 664<\/p>\n\n\n\n
[25 Cal.Rptr.2d 109, 863 P.2d 179]; see also Rashtian v. BRAC-BH, Inc. <\/em>(1992) 9<\/p>\n\n\n\n
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].)<\/p>\n\n\n\n
<\/p>\n\n\n\n
Sources and Authority<\/strong><\/strong><\/p>\n\n\n\n
- \n
- Legislative Intent With Regard to Application of the Laws About Harassment. Government Code section 12923.<\/li>\n\n\n\n
- Harassment Prohibited Under Fair Employment and Housing Act. Government Code section 12940(j)(1).<\/li>\n\n\n\n
- \u201cEmployer\u201d Defined for Harassment. Government Code section 12940(j)(4)(A).<\/li>\n\n\n\n
- Harassment Because of Sex. Government Code section 12940(j)(4)(C).<\/li>\n\n\n\n
- Person Providing Services Under Contract. Government Code section 12940(j)(5).<\/li>\n\n\n\n
- Aiding and Abetting Fair Employment and Housing Act Violations. Government Code section 12940(i).<\/li>\n\n\n\n
- Perception and Association. Government Code section 12926(o).<\/li>\n\n\n\n
- \u201cTo 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\u2019s] protected status; (4) the harassment unreasonably interfered with [plaintiff\u2019s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.\u201d (Ortiz v. Dameron Hospital Assn. <\/em>(2019) 37 Cal.App.5th 568, 581 [250 Cal.Rptr.3d 1].)<\/li>\n\n\n\n
- \u201c[T]he adjudicator\u2019s inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff\u2019s work performance. To show such interference, \u2018the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.\u2019 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 \u2018make it more difficult to do the job.\u2019 \u201d (Harris v. Forklift Sys. <\/em>(1993) 510 U.S. 17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov. Code, \u00a7 12923(a) endorsing this language as reflective of California law.)<\/li>\n\n\n\n
- \u201c[A]n employer is strictly liable for all acts of sexual harassment by a supervisor.\u201d (State Dept. of Health Servs.<\/em>, supra<\/em>, 31 Cal.4th at p. 1042.)<\/li>\n\n\n\n
- \u201cThe applicable language of the FEHA does not suggest that an employer\u2019s 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 \u2018other than an agent,\u2019 \u2018not acting as the employer\u2019s agent,\u2019 or \u2018not acting within the scope of an agency for the employer.\u2019 By providing instead in section 12940, subdivision (j)(1), that the negligence standard applies to acts of harassment \u2018by an employee other than an agent or supervisor<\/em>\u2019 (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\u2019s agent, and that agency principles come into play only<\/li>\n<\/ul>\n\n\n\n
<\/p>\n\n\n\n
when the harasser is not a supervisor. (State Dept. of Health Services<\/em>, supra<\/em>, 31 Cal.4th at p. 1041, original italics.)<\/p>\n\n\n\n
- \n
- \u201cWhen 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).\u201d (Rehmani v. Superior Court <\/em>(2012) 204 Cal.App.4th 945, 952 [139 Cal.Rptr.3d 464].)
- \u201cIf 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\u2014for example, when the victim or someone else informs the employer\u2014there simply is no \u2018unlawful employment practice\u2019 that the FEHA governs.\u201d (Carrisales v. Dept. of Corrections <\/em>(1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083], called into doubt on other grounds by statute.)<\/li><\/ul>
- \u201c[I]n order for the employer to avoid strict liability for the supervisor\u2019s 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\u2019s actions regardless of whether the supervisor was acting as the employer\u2019s agent.\u201d (Myers v. Trendwest Resorts, Inc. <\/em>(2007) 148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)<\/li><\/ul>\n
- \n
- Employers may be liable for the conduct of certain agents. (See Gov. Code,<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n
\u00a7\u00a7 12925(d), 12926(d), and 12940(j)(1) and Reno v. Baird <\/em>(1998) 18 Cal.4th 640, 658 [76 Cal.Rptr.2d 499, 957 P.2d 1333] [California Supreme Court declined to express opinion whether \u201cagent\u201d language in the FEHA merely incorporates respondeat superior principles or has some other meaning].)<\/p>\n\n\n\n
- \n
- \u201cHere, [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.\u201d (Bihun<\/em>, supra<\/em>, 13 Cal.App.4th at p. 1000.)
- \u201cThe McDonnell Douglas <\/em>burden-shifting framework does not apply to [plaintiff]\u2019s harassment claim either. Since \u2018there is no possible justification for harassment in the workplace,\u2019 an employer cannot offer a legitimate nondiscriminatory reason for it.\u201d (Cornell v. Berkeley Tennis Club <\/em>(2017) 18 Cal.App.5th 908, 927 [227 Cal.Rptr.3d 286].)<\/li><\/ul>
- \u201c[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 \u2018sufficiently severe or pervasive to alter the conditions of the victim\u2019s employment.\u2019 \u201d (Etter v. Veriflo Corp. <\/em>(1998) 67 Cal.App.4th 457, 464\u2013465 [79 Cal.Rptr.2d 33], internal citations and footnote omitted.)<\/li><\/ul>\n
- \n
- \u201cWhen the workplace is permeated with discriminatory intimidation, ridicule and insult that is \u2018sufficiently severe or pervasive to alter the conditions of the victim\u2019s employment and create an abusive working environment,\u2019 the law is violated.\u201d (Kelly-Zurian v. Wohl Shoe Co., Inc. <\/em>(1994) 22 Cal.App.4th 397, 409<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n
<\/p>\n\n\n\n
[27 Cal.Rptr.2d 457], internal citation omitted.)<\/p>\n\n\n\n
- \n
- \u201c[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: \u2018[N]ot all workplace conduct that may be described as \u201charassment\u201d affects a \u201cterm, condition, or privilege\u201d of employment within the meaning of Title VII. For sexual harassment to be actionable, it must be sufficiently severe or pervasive \u201cto alter the conditions of [the victim\u2019s] employment and create an abusive working environment.\u201d \u2019 . . . \u2018Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment\u2014an environment that a reasonable person would find hostile or abusive\u2014is beyond Title VII\u2019s 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\u2019s employment, and there is no Title VII violation.\u2019 . . . California courts have adopted the same standard in evaluating claims under the FEHA.\u201d (Aguilar v. Avis Rent A Car System, Inc. <\/em>(1999) 21 Cal.4th 121, 129\u2013130 [87 Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)<\/li>\n\n\n\n
- \u201cTo be actionable, \u2018a 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.\u2019 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\u2019s 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.\u201d (Lyle v. Warner Brothers Television Productions <\/em>(2006) 38 Cal.4th 264, 284 [42 Cal.Rptr.3d 2, 132 P.3d 211], internal citations omitted.)<\/li>\n\n\n\n
- \u201cThe 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 \u2018nondecisionmakers, or [made] by decisionmakers unrelated to the decisional process.\u2019 [Defendant] also argues that ambiguous remarks are stray, irrelevant, prejudicial, and inadmissible. However, \u2018the task of disambiguating ambiguous utterances is for trial, not for summary judgment.\u2019 Determining the weight of discriminatory or ambiguous remarks is a role reserved for the jury.\u201d (Reid v. Google, Inc. <\/em>(2010) 50 Cal.4th 512, 540\u2013541 [113 Cal.Rptr.3d 327, 235 P.3d 988], internal citations omitted.)<\/li>\n\n\n\n
- \u201c[I]n reviewing the trial court\u2019s grant of [defendant]\u2019s 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.\u201d (Reid, supra<\/em>, 50 Cal.4th at p. 545.)<\/li>\n\n\n\n
- \u201c[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<\/li>\n<\/ul>\n\n\n\n
<\/p>\n\n\n\n
it be.\u201d (Nazir v. United Airlines, Inc. <\/em>(2009) 178 Cal.App.4th 243, 286 [100<\/p>\n\n\n\n
Cal.Rptr.3d 296].)<\/p>\n\n\n\n
- \n
- \u201cIn contending that the \u2018subjectively offensive\u2019 element was not proven, a defendant \u2018will 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.\u2019 [\u00b6] [Evidence Code] Section 1106 limits the evidence the defendant may use to support this assertion. It provides that \u2018[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\u2019s 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 \u2019 This general rule is, however, subject to the exception that it<\/li>\n<\/ul>\n\n\n\n
\u2018does not apply to evidence of the plaintiff\u2019s sexual conduct with the alleged perpetrator.\u2019 The term \u2018sexual conduct\u2019 within the meaning of section 1106 has been broadly construed to include \u2018all active or passive behavior (whether statements or actions), that either directly or through reasonable inference establishes a plaintiff\u2019s willingness to engage in sexual activity,\u2019 including \u2018racy banter, sexual horseplay, and statements concerning prior, proposed, or planned sexual exploits.\u2019 \u201d (Meeks v. AutoZone, Inc. <\/em>(2018) 24 Cal.App.5th 855, 874 [235 Cal.Rptr.3d 161], internal citations omitted.)<\/p>\n\n\n\n
- \n
- \u201c[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.\u201d (McGinest v. GTE Serv. Corp. <\/em>(9th Cir. 2004) 360 F.3d 1103, 1115.)\n
- \n
- \u201cUnder……. FEHA, sexual harassment can occur between members of the same<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n
gender as long as the plaintiff can establish the harassment amounted to discrimination because of sex<\/em>.\u201d (Lewis v. City of Benicia <\/em>(2014) 224 Cal.App.4th 1519, 1525 [169 Cal.Rptr.3d 794], original italics.)<\/p>\n\n\n\n
- \n
- \u201c[T]here is no requirement that the
- \u201cUnder……. FEHA, sexual harassment can occur between members of the same<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n
- \u201c[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.\u201d (McGinest v. GTE Serv. Corp. <\/em>(9th Cir. 2004) 360 F.3d 1103, 1115.)\n
- \u201cTo be actionable, \u2018a 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.\u2019 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\u2019s 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.\u201d (Lyle v. Warner Brothers Television Productions <\/em>(2006) 38 Cal.4th 264, 284 [42 Cal.Rptr.3d 2, 132 P.3d 211], internal citations omitted.)<\/li>\n\n\n\n
- \u201c[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: \u2018[N]ot all workplace conduct that may be described as \u201charassment\u201d affects a \u201cterm, condition, or privilege\u201d of employment within the meaning of Title VII. For sexual harassment to be actionable, it must be sufficiently severe or pervasive \u201cto alter the conditions of [the victim\u2019s] employment and create an abusive working environment.\u201d \u2019 . . . \u2018Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment\u2014an environment that a reasonable person would find hostile or abusive\u2014is beyond Title VII\u2019s 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\u2019s employment, and there is no Title VII violation.\u2019 . . . California courts have adopted the same standard in evaluating claims under the FEHA.\u201d (Aguilar v. Avis Rent A Car System, Inc. <\/em>(1999) 21 Cal.4th 121, 129\u2013130 [87 Cal.Rptr.2d 132, 980 P.2d 846], internal citations omitted.)<\/li>\n\n\n\n
- \u201cWhen the workplace is permeated with discriminatory intimidation, ridicule and insult that is \u2018sufficiently severe or pervasive to alter the conditions of the victim\u2019s employment and create an abusive working environment,\u2019 the law is violated.\u201d (Kelly-Zurian v. Wohl Shoe Co., Inc. <\/em>(1994) 22 Cal.App.4th 397, 409<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n
- \u201c[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 \u2018sufficiently severe or pervasive to alter the conditions of the victim\u2019s employment.\u2019 \u201d (Etter v. Veriflo Corp. <\/em>(1998) 67 Cal.App.4th 457, 464\u2013465 [79 Cal.Rptr.2d 33], internal citations and footnote omitted.)<\/li><\/ul>\n
- \u201cThe McDonnell Douglas <\/em>burden-shifting framework does not apply to [plaintiff]\u2019s harassment claim either. Since \u2018there is no possible justification for harassment in the workplace,\u2019 an employer cannot offer a legitimate nondiscriminatory reason for it.\u201d (Cornell v. Berkeley Tennis Club <\/em>(2017) 18 Cal.App.5th 908, 927 [227 Cal.Rptr.3d 286].)<\/li><\/ul>
- \u201cHere, [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.\u201d (Bihun<\/em>, supra<\/em>, 13 Cal.App.4th at p. 1000.)
- Employers may be liable for the conduct of certain agents. (See Gov. Code,<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n
- \u201c[I]n order for the employer to avoid strict liability for the supervisor\u2019s 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\u2019s actions regardless of whether the supervisor was acting as the employer\u2019s agent.\u201d (Myers v. Trendwest Resorts, Inc. <\/em>(2007) 148 Cal.App.4th 1403, 1421 [56 Cal.Rptr.3d 501].)<\/li><\/ul>\n
- \u201cIf 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\u2014for example, when the victim or someone else informs the employer\u2014there simply is no \u2018unlawful employment practice\u2019 that the FEHA governs.\u201d (Carrisales v. Dept. of Corrections <\/em>(1999) 21 Cal.4th 1132, 1136 [90 Cal.Rptr.2d 804, 988 P.2d 1083], called into doubt on other grounds by statute.)<\/li><\/ul>
- \u201c[T]he adjudicator\u2019s inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff\u2019s work performance. To show such interference, \u2018the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.\u2019 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 \u2018make it more difficult to do the job.\u2019 \u201d (Harris v. Forklift Sys. <\/em>(1993) 510 U.S. 17, 25 [114 S.Ct. 367, 126 L.Ed.2d 295], conc. opn. of Ginsburg, J.; see Gov. Code, \u00a7 12923(a) endorsing this language as reflective of California law.)<\/li>\n\n\n\n
- <\/strong>That the conduct was a substantial factor in causing [<\/strong>name of plaintiff<\/em>]\u2019s harm.<\/strong><\/strong><\/li>\n<\/ul>\n\n\n\n
- <\/strong>That [<\/strong>name of plaintiff<\/em>] was subjected to harassing conduct because [he\/she\/<\/strong>nonbinary pronoun<\/em>] was [<\/strong>protected status, e.g., a woman<\/em>];<\/strong><\/strong><\/li>\n\n\n\n
- <\/strong>That [<\/strong>name of plaintiff<\/em>] 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] [<\/strong>name of defendant<\/em>];<\/strong><\/strong><\/li>\n\n\n\n
- Civil Liability:<\/strong> 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.<\/li>\n<\/ul>\n\n\n\n
- Wrongful Termination:<\/strong> 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.<\/li>\n\n\n\n
- Hostile Work Environment<\/strong>: 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.<\/li>\n\n\n\n
- Retaliation Claims<\/strong>: Employees who face termination after reporting harassment may claim retaliation. Proving a direct link between the complaint and the termination can be complex.<\/li>\n\n\n\n
- Wrongful Termination Laws<\/strong>: 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.<\/li>\n\n\n\n