Disability Harassment is Illegal under California Law

icon-harassmentUnder California’s Fair Employment and Housing Act (“FEHA”), it is an unlawful for an employer or any other person to harass an employee due to their physical disability, mental disability, or medical condition.[1] Unlike claims for discrimination, liability for harassment applies to “any person” and thus extends to individuals, including individual supervisory employees.[2]

In order for harassment to be actionable under the FEHA, the conduct must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”[3] Notably, the conduct need only be severe or pervasive.[4] The words “severe” and “pervasive” have no peculiar meanings under the law. The adjective “severe” is defined as “strongly critical and condemnatory” or “inflicting pain or distress.”[5] The verb “pervade” is defined as “to become diffused throughout every part of.”[6]

As to whether the alleged conduct is sufficiently severe or pervasive, a jury should consider the totality of circumstances.[7] The relevant jury instruction identifies the following factors that may be considered, among others: “(a) The nature of the conduct; (b) How often, and over what period of time, the conduct occurred; (c) The circumstances under which the conduct occurred; (d) Whether the conduct was physically threatening or humiliating; and (e) The extent to which the conduct unreasonably interfered with an employee’s work performance.”[8]

In Caldera v. Department of Corrections and Rehabilitation, the court affirmed a jury verdict in favor of the plaintiff on a claim for disability harassment.[9] The plaintiff alleged that he was mocked for his stutter multiple times in front of others.[10] To make matters worse, the harasser’s conduct had been broadcast over the prison’s radio system, and heard by about 50 employees.[11] Other incidents of harassment had occurred in front of the plaintiff’s co-workers.[12] Additionally, the plaintiff’s psychologist had testified that the harassment had caused the plaintiff to experience psychological disorders.[13] This evidence was more than enough to support the jury’s determination that the harassing conduct had been both severe and pervasive, although either would have been sufficient.[14]

[1] Cal. Gov’t Code § 12940(j)(1).

[2] Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, 65 (1996).

[3] Nazir v. United Airlines, Inc., 178 Cal.App.4th 243, 263-264 (2009).

[4] Ramirez v. Wong,188 Cal.App.4th 1480, 1488 (2010).

[5] Webster’s Collegiate Dictionary (11th ed. 2007) p. 1140, col. 2.

[6] Id. at p. 925, col. 2.

[7] Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590, 609-610 (1989).

[8] CACI No. 2524.

[9] Caldera v. Dep’t of Corr. & Rehab., 25 Cal.App.5th 31, 38–43 (2018).

[10] Id. at 34.

[11] Id. at 35.

[12] See id. at 34-36.

[13] Id. at 35.

[14] Id. at 39.