Sexual Harassment Claims Exempt from Forced Arbitration
The message is clear: Workers who bring sexual harassment claims against their employers cannot be forced to arbitrate those claims and are free to bring them in court where they belong.
New Amendment to Existing Law Strengthens Rights of California Employees Who Enter Into Settlement Agreements with Their Employers
The majority of disputes that arise in the workplace and proceed to litigation find their resolution not at trial, but in a settlement—agreed to by the employer and the employee and hopefully beneficial to both.
Because so many cases end in settlement, the terms of the settlement agreement become crucial for ensuring a just outcome that is fair to both parties. This is especially so because the power dynamic in negotiations between employers and their employees is often skewed in favor of the employer.
Disabled Prison Guard Wins his Third Appeal Against the California Department of Corrections and Rehabilitation
Courts can award attorneys’ fees to the prevailing plaintiff in a discrimination or harassment claim brought under the Fair Employment and Housing Act (FEHA). These attorney fee awards are designed to incentivize and reward a plaintiff’s counsel for litigating a civil rights case that is generally taken on a contingency fee basis and therefore has inherent risks. Trial courts first calculate the lodestar amount, which is the product of the hours spent and the prevailing hourly rate of attorneys in the community conducting similar non-contingent litigation. Then courts can increase this amount by adding a multiplier or increasing the lodestar amount by looking at various factors, such as the risk of non-payment, the public interest in advancing civil rights cases, the complexity of the issues involved, and the skill of the attorneys. (more…)
Proving Discrimination and Harassment Cases in California
In a victory for workers’ rights, the California Legislature enacted California Government Code section 12923 as a statement of legislative findings and purpose regarding harassment and discrimination claims brought under the Fair Employment and Housing Act (“FEHA”). The legislation was enacted to “provide all Californians with an equal opportunity to succeed in the workplace.” The Legislature noted section 12923 “should be applied accordingly by the courts.” The legislation went into effect on January 1, 2019. Accordingly, courts have cited section 12923 in analyzing employees’ discrimination and harassment cases throughout the past year.
Employees who have suffered workplace harassment and discrimination should be aware of section 12923’s impact in five different ways:
- Section 12923 substantially modified the severe or pervasive standard for harassment claims to require a reasonable person to find “that the harassment so altered working conditions as to make it more difficult to do the job.” Gov. Code § 12923(a).
Prior to this modification, employees were required to prove that the harassing conduct unreasonable interfered with their work performance. Now employees do not need to prove that their productivity declined to establish that the harassing conduct was severe or pervasive.
In response to section 12923, the Judicial Council of California Civil Jury Instructions (“CACI”) revised its jury instructions to define what conduct is considered “severe and pervasive” to establish a harassment claim. The revision added: “[Name of plaintiff] does not have to prove that [his/her] 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.” See CACI No. 2524.
Accordingly, employees can prevail by showing that the harassing conduct altered their working conditions so as to make it more difficult to do the job. See Hyams v. CVS Health Corporation, No. 18-cv-06271-PJH 2019 WL 6827292, at *5 (N.D. Cal., Dec. 12, 2019) (granting defendant’s motion for summary judgment because the plaintiff did “not declare or otherwise present any evidence that the statements “altered working conditions as to make it more difficult to do the job.”).
- Section 12923 clarified that a “single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment.” Cal. Gov. Code § 12923(b).
Prior to this modification, courts consistently held that harassment is not pervasive if it is occasional, isolated, sporadic or trivial. However, in response to section 12923, CACI revised its jury instructions in defining what conduct is considered “severe and pervasive” to establish a harassment claim. The 2019 revision added: “[A single incident can be sufficiently severe or pervasive to constitute harassment.]” See CACI No. 2524.
Since 2019, courts have applied section 12923(b) accordingly in denying pre-trial dispositive motions. See Milner v. TBWA Worldwide, Inc., No. CV 19-08174 DSF (AFMx), 2019 WL 5617757, at *4 (C.D. Cal., Oct. 30, 2019) (“Under California law, even one instance of harassment can be sufficient” to establish a FEHA age-based harassment claim); seealso Doe v. Wells Fargo Bank, N.A., No. CV 19-5586-GW-PLAx, 2019 WL 3942963, at *6 (C.D. Cal. Aug. 19, 2019) (citing Cal. Gov. Code § 12923(b) in explaining “what Defendants fail to recognize is that even one instance of harassment can be sufficient” for a viable FEHA harassment claim against an individual defendant.).
- Section 12923 directs courts to consider the totality of the circumstances in determining a hostile work environment and specifically rejects the “stray remarks” doctrine. Cal. Gov. Code § 12923(c).
The Legislature explained, “a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.” See Concialdi v. Jacobs Engineering Group, No. CV 17-1068 FMO (GJSx), 2019 WL 3084282, at *10 (C.D. Cal. Apr. 29, 2019) (denying Defendant’s motion for summary judgment for age-based discrimination even if Plaintiff’s cause of action was based on stray remarks not made in the direct context of the decisional process.”).
- Section 12923 makes it clear that the same legal standard should apply to all sexual harassment cases regardless of the type of workplace. Cal. Gov. Code § 12923(d).
The Legislature elaborated: “It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past.” Id.
- Section 12923 explained that: “Harassment cases are rarely appropriate on summary judgment” and agreed that “hostile working environment cases involve issues ‘not determinable on paper.’” Cal. Gov. Code § 12923(e).
This provision is especially important because employers often file dispositive motions in harassment cases. See Loi Ngo v. United Airlines, Inc., No. 19-cv-04277-JCS, 2019 WL 6050832, at *6 (N.D. Cal. Nov. 15, 2019) (citing section 12923(e) in granting plaintiff’s motion for remand finding plaintiff did not fraudulently join an individual defendant.).
Employees should keep these powerful provisions in mind when pursuing discrimination and harassment claims under FEHA.
If you have been subject to harassment or discrimination in the workplace, please feel free to call the experienced workers rights attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process. We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.
Court of Appeal Rules in Favor of Gay CHP Veteran Suing for Sexual Orientation Discrimination
An openly gay California Highway Patrol (CHP) officer, Jay Brome, brought suit against his employer after enduring twenty years of harassment and discrimination. The trial court dismissed his claims on the grounds that they were not filed within the statute of limitations. The California Court of Appeal for the First District reversed the trial court’s ruling in a unanimous opinion, holding that equitable tolling could extend Mr. Brome’s statute of limitations. (Brome v. California Highway Patrol, A154612, filed January 28, 2020.) (more…)
Disabled Psychologist’s Claims for Discrimination, Harassment and Retaliation against Department of Corrections Fail Despite Providing Doctor’s Notes
As an employee, there may be times when you need an accommodation in the workplace due to a disability. Sometimes, your employer may ask for a doctor’s note in the course of engaging in the interactive process. How specific do the doctor’s notes need to be? A recently published case provides some insight into this question.
Plaintiff John Doe began working at Ironwood State Prison as a psychologist in 2012. In 2013, he requested to work in a quiet place that allowed him to focus and concentrate. (more…)
Intolerable Working Conditions Support a Nurse’s Constructive Termination Claim
A 54-year old Filipino woman, Shirley Galvan, worked for Dameron Hospital Association (Dameron) as a nurse for approximately twenty-five years. In 2011, Doreen Alvarez became Ms. Galvan’s supervisor and allegedly began harassing Ms. Galvan and other Filipino employees. Ms. Alvarez commented that the Filipino employees could not speak English, had thick accents, made too much money, were too old, and had been at Dameron too long. Ms. Alvarez threatened to “clean house” and repeatedly humiliated the Filipino employees by making derogatory statements about their accents, level of education, and work performance. Ms. Galvan went out on stress leave due to the anxiety she was experiencing as a result of this harassment. She was constructively terminated in 2014.
Ms. Galvan brought suit against Dameron and Ms. Alvarez, alleging that she had been discriminated against and harassed on the basis of her age and national origin, and constructively terminated in violation of the California Fair Employment and Housing Act. (more…)
LA Unified School District Teacher’s Claims Alleging Harassment and Retaliation Fail
Aurora Le Mere was a Los Angeles Unified School District (LAUSD) teacher for thirteen years. In that time, she filed a number of complaints and claims arising from her employment, including worker’s compensation claims and administrative complaints regarding LAUSD’s violations of provisions of the Education Code. In 2007, she filed a lawsuit against LAUSD and two individuals for discrimination, harassment and civil rights violations. All her claims and cases through 2007 settled. Then, in 2015, Ms. Le Mere filed another complaint against LAUSD and six individuals claiming that she had been unlawfully harassed and retaliated against since filing the 2007 case and worker’s compensation claims.
The defendants successfully demurred twice to the 2015 complaint. (more…)
An Employer Can Potentially be Held Liable if a Nonemployee Sexually Harasses an Employee
What happens if a nonemployee harasses or sexually assaults an employee in the workplace? Is the employer liable? Possibly. On October 26, 2017, the Court of Appeal, Fourth Appellate District considered whether an employee’s claims against her employer for violating the California Fair Employment and Housing Act (FEHA) for harassment and failing to prevent harassment overcame the workers’ compensation exclusivity doctrine. M.F. v. Pacific Pearl Hotel Management, LLC (D070150, Fourth Appellate District, Division One, 10/26/17). (more…)
If Someone Hugs me in the Workplace, Can that be Considered Sexual Harassment?
If you feel uncomfortable when a boss or colleague hugs you in the workplace, do you have a valid claim for sexual harassment? Possibly. If a co-worker hugs you on several occasions and engages in other inappropriate conduct, you may have a claim. There is no magic number of incidents needed in order to establish liability. (more…)