

### A Victim's Guide  
To Sexual Harassment

### For California

### By

### Timothy B. Broderick

### Attorney at Law, Broderick Law Firm

### and

### Katrina M. Telfer

### Attorney at Law, Broderick Law Firm

SMASHWORDS EDITION

Copyright © 2008 Timothy B. Broderick.  
All rights reserved.

Cover Art Copyright © 2008 Ryan Casey

For information, please contact:

Broderick Law Firm

2600 El Camino Real, Suite 506

Palo Alto, CA 94306

Telephone: (650) 857-9000

E-mail: brodericklaw@brodericklaw.com

Website: www.sexualharasslaw.com

The Broderick Law Firm prepared this book for victims of sexual harassment in California. The materials presented are for informational purposes only and are not legal advice. The information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Readers should not act upon this information without seeking professional counsel.

The Broderick Law Firm handles legal matters within the jurisdiction of the federal and state courts in the state of California only.

Table of Contents

Introduction

Chapter One. What is Sexual Harassment?

I. Overview

II. Distinction Between Sexual Harassment and  
Gender Discrimination

III. Examples of Sexual Harassment

IV. Examples of Gender Discrimination

V. Controlling Law

VI. Questions and Answers on Specific

Examples of Workplace Behavior

•Is teasing sexual harassment?

•If an employee eventually has a

consensual relationship with the

harasser, is it still sexual harassment?

•Can I sue someone for sexual

harassment after ending a

consensual relationship?

•Can one incident constitute

sexual harassment?

•My coworker flirts with me at

work even through I wish he would not.

It makes me uncomfortable.

Is this sexual harassment?

•Can favoritism for one employee

due to sexual favors be actionable

by other employees?

VII. Conclusion

Chapter Two. Quid Pro Quo Sexual Harassment

And Hostile Work Environment

Sexual Harassment

I. Introduction

II. What is Quid Pro Quo Sexual Harassment?

A. What Must a Victim Show to Prevail on a

Quid Pro Quo Sexual Harassment Claim?

•Case In Point:  
Unwanted Sexual Propositions  
in Exchange for Offer of Promotion

III. What is Hostile Work  
Environment Sexual Harassment?

A. What Must a Victim Show To Prevail  
on a Hostile Work Environment  
Sexual Harassment Claim?

IV. What is Not a Hostile Work Environment?

•Case In Point:  
The Friends Case

V. Harassment Must Be Based on Gender

A. Hostile Work Environment Must Be  
Based on Gender, But Need Not  
Necessarily Be Sexual in Nature

•Case In Point:  
Yelling in the Workplace

VI. Sufficiently Severe or Pervasive

A. What is Sufficiently Severe?

B. What is Sufficiently Pervasive?

C. Is a Single Incident Enough?

D. Look to the Totality of the Circumstances

E. Conduct Sufficiently Severe or

Pervasive to Create an Unlawful

Hostile Work Environment

•Case In Point:  
Coerced Sexual Behavior  
•Case In Point:  
Foul Language

•Case In Point:  
Offensive Sexual References

•Case In Point:  
Pornographic Pictures

•Case In Point:  
Nicknames and Centerfolds

•Case In Point:  
Threatening Stares

•Case In Point:  
Verbal Abuse and Touching

•Case In Point:  
Preferential Treatment for Submission

•Case In Point:  
Repeated Requests for Sex

•Case In Point:  
Vulgar Slurs

F. Conduct Not Sufficiently Severe

or Pervasive to Create an Unlawful

Hostile Work Environment

•Case In Point:  
Rude and Inappropriate Behavior

•Case In Point:  
Offensive Artwork

•Case In Point:  
Single Proposition

•Case In Point  
Vulgarity and Nude Pictures

•Case In Point:  
Winks and Proposition

•Case In Point:  
Touching Hair

VII. Indirect Victims

A. Where Harassing Behavior Is  
Not Directed To Offended Employee

B. Favoritism in the Workplace Can  
Constitute Unlawful Hostile Work

Environment Sexual Harassment of

Non-Participating Coworkers

VIII. Same-Sex Harassment

A. Harasser Same Sex as Victim

• Case In Point:  
Same-Sex Harassment

IX. Conclusion

Chapter Three. Gender-Based Discrimination:

Stereotypes and Pregnancy

I. Introduction

II. What is Gender Discrimination?

• Case In Point:  
Acting "Like a Lady"

• Case In Point:  
Women with Children

A. Gender Stereotypes: Disparate Treatment

1. Proving Disparate Treatment:

The Prima Facie Case

2. Mixed Motives

3. Same Actor Evidence

III. Discrimination Based on Sexual Orientation

IV. Discrimination Based on Pregnancy

or Potential Pregnancy

•Case In Point:  
Discrimination Based on Potential  
for Future Pregnancy is Unlawful

•Case In Point:  
Termination for In Vitro Fertilization  
Sex Discrimination According To

Seventh Circuit

•Case In Point:  
Facts Found to Constitute  
Pregnancy Discrimination

V. Pregnancy Leave

A. Family Medical Leave Act of 1993

1. Eligibility

2. Restoration of Position

B. California Pregnancy Disability Leave

1. Eligibility

2. Disability Requirement

3. Job Transfer

4. Reinstatement

5. Denial of Leave

C. California Family Rights Act

1. Eligibility

2. Relationship Between CFRA and PDL

•Case In Point:

Leave Policy May Differentiate Between

Work-Related and Non-Work-Related

Disabilities, Such as Pregnancy

VI. Conclusion

Chapter Four. Steps the Victim Can Take to

Contend With Sexual Harassment

I. Introduction

II. Know Your Rights

III. Tell the Harasser to Stop

IV. Report the Incident to a Supervisor or

to the Human Resources Department

A. Is a Sexual Harassment Victim

Required to Make a Complaint

to the Employer?

V. Coping with the Stressful Effects

of Sexual Harassment

VI. Seek Professional Medical Help

VII. Document the Harassment

VIII. Proving the Harassing Conduct was Unwanted

• Case In Point:  
Even If Victim's Conduct was  
Voluntary, This Does Not Mean

the Advances Were Welcome

• Case In Point:  
Victim's Dress and Behavior  
Relevant to Determination of Whether

Advances Were Unwanted

IX. Conclusion

Chapter Five. Employer and Individual  
Responsibilities

I. Introduction

II. Number of Employees Required for  
Employer Responsibility

A. California Law: One Employee

Required for Sexual Harassment,

But Five for Discrimination

B. Federal Law: Fifteen Employees Required

III. Preventive Measures Required by Employers

IV. Who is Liable for Sexual Harassment?

A. Summary of Liability

1. Employer Liability

•Case In Point:  
Employer Liable for Harassment

of Prison Employee by Prison Inmates

2. Individual Liability

B. What is a "Supervisor"?

•Case In Point:  
Person Need Not Be Wholly

Responsible for Employee's

Work Product to be Considered

Supervisor Under FEHA

C. Liability for Off-Duty Harassment

•Case In Point:  
Employer Avoids Strict Liability

When Harassment Results

From Private Relationship

Unconnected with Employment

•Case In Point:  
Employer Must Take Immediate

and Appropriate Corrective Action

When Employee Suffers

Off-Duty Stalking Plus Less

Severe On-Duty Harassment

D. No Individual Liability for

Retaliation or Discrimination

•Case In Point:  
Generally, No Individual Liability

For Retaliation

V. Affirmative Defenses Limiting Liability for

Damages When the Victim Delays Reporting

the Harassment

A. California Avoidable Consequences Defense

•Case In Point:  
California Affirmative Defense

For Harassment Cases

B. Federal Defense for Limiting Liability

For Damages

•Case In Point:  
Ellerth/Faragher Affirmative Defense

Under Federal Law

VI. Punitive Damages

A. California Law

B. Federal Law

VII. Conclusion

Chapter Six. Retaliation

I. Introduction

II. What is Retaliation?

III. Proving Retaliation

•Case In Point:  
Totality of the Circumstances Must  
Be Considered When Determining

Whether an Adverse Employment

Action Has Been Taken

•Case In Point:  
United States Supreme Court

Rules That Retaliation Includes

Acts That Deter Reporting

•Case In Point:  
Protected Activity Under FEHA:

Employee Need Not Necessarily

Make a Specific Complaint to the

Employer for a Finding of Retaliation

Conclusion

Chapter Seven. Infliction of Emotional Distress  
and Other Torts the Harasser May

Have Committed

I. Introduction

II. Intentional Infliction of  
Emotional Distress

A. Common Law Verses Emotional Distress as

Part of Damages for Sexual Harassment

Claim

B. Emotional Distress and Workers'

Compensation Law

III. Negligent Infliction of Emotional Distress

A. Emotional Distress and Discovery

IV. Assault and Battery

V. Conclusion

Chapter Eight. So I Have a Case,

What Now?

I. Introduction

II. Consulting an Attorney

A. Administrative Hearings as a

Possible Alternative to Litigation

in Civil Court

III. Immediate Next Steps

A. Administrative Agency Complaint

Requirements

1. Exhaustion of

Administrative Remedies

Cases In Point:

Sufficient Facts in Complaint

Case In Point:

Sufficiency of Filing For a Charge

B. Right to Sue Letter Required

C. Caution Ahead: Statute of Limitations

1. Continuing Violations Doctrine

Case In Point:  
Continuing Violations Doctrine Applied

Where Victim Alleged 11-Year Pattern

of Sexual Harassment

Case In Point:  
Continuing Violations Doctrine and

Retaliation

IV. Contractual Arbitration

Case In Point:

Mandatory Arbitration Agreement

Enforceable Only if Fairness

Requirements Met

Case In Point:  
Consent to Arbitration  
Agreement Required

V. Conclusion

Final Advice

Appendix A: Selected Sections of the California

Fair Employment and Housing Act

•Cal. Gov. Code § 12926. Definitions Regarding

Unlawful Practices (selected provisions)

Cal. Gov. Code § 12926 (c) "Employee"

Cal. Gov. Code § 12926 (d) "Employer"

Cal. Gov. Code § 12926 (p) "Sex"

Cal. Gov. Code § 12926 (q)

"Sexual Orientation"

Cal. Gov. Code § 12926 (r) "Supervisor"

Cal. Gov. Code § 12940. Unlawful

Employment Practices (selected provisions)

Cal. Gov. Code § 12945. Pregnancy

Disability Leave (selected provisions)

Cal. Gov. Code § 129245.2. Family Rights Act

(selected provisions)

Appendix B: Selected Sections of Federal Title VII

42 U.S.C §2000e. Definitions

(selected provisions)

Cal. Gov. Code § 12926 (c) "person"

Cal. Gov. Code § 12926 (d) "employer"

Cal. Gov. Code § 12926 (p) "employee"

Cal. Gov. Code § 12926 (q) "because of

sex" or "on the basis of sex"

42 U.S.C § 2000e-2. Unlawful Employment

Practices (selected provisions)

Endnotes of Citations

Introduction

Victims of sexual harassment typically feel humiliated as a result of the oppressive experience of being harassed in the workplace. A normal response is for victims to feel depressed, angry and powerless. Under the emotional strain of sexual harassment, it is difficult to assess the situation and to respond appropriately and assertively. This book is designed to help victims assess their situations and to advise them about how they should respond to the demeaning experience of sexual harassment in the workplace.

Sexual harassment can happen anywhere, but when it happens in or connected to the workplace it is unlawful under federal and California statutes. This book describes the sometimes uncertain line between discourteous behavior in the workplace and unlawful sexually oriented behavior at work. Some sexual conduct in the workplace is tolerated, but some sexual behavior, particularly if it is unwanted and severe or pervasive, is unlawful.

The first thing you want to know when you are thinking about trying to find a sexual harassment attorney is whether you have a case. Harassment can mean different things in different contexts. One might consider unprofessional or rude behavior to be harassment, but rude behavior is not necessarily unlawful sexual harassment. Some harassment might be grounds for dismissal, suspension or other adverse employment action. Yet, that same behavior may not be sufficient grounds for a sexual harassment lawsuit. This book investigates the varieties of sexual harassment in the workplace that will survive the judicial scrutiny of a lawsuit.

Certainly, unprofessional and discourteous acts might also be sufficient grounds for a sexual harassment lawsuit. However, there are situations where an individual's offensive and inappropriate behavior is insufficient to support a lawsuit. The grounds for termination of employment or other adverse employment action depend upon individual employers, so there is a great deal of variety between employers as to how they respond to discourteous behavior and sexual harassment in the workplace. While an employer might reprimand, suspend or fire an individual for inappropriate behavior, that same behavior might not constitute a sufficient claim for sexual harassment in a court of law.

This book features "Cases In Point" that describe the facts of real cases in which the courts determined whether the alleged behavior did or did not qualify as sexual harassment. The table of contents summarizes the topic of each Case In Point, so that victims of sexual harassment can look for cases that parallel their experience in the workplace. Cases In Point present a realistic view of what qualifies as sexual harassment and they can give victims preliminary information to consider about the viability of their claims, even before they consult a sexual harassment attorney.

Regardless of whether a victim of sexual harassment intends to file a lawsuit, a victim's first desire is to make the harassment stop. Harassment is controlling and manipulative behavior that has an emotional impact on the victim, and the victim is likely to feel depressed and uncomfortable about having to go back into the workplace and face the harassment. In extreme cases, a victim may even need to quit his or her job in order to escape the harassment. Therefore, even before going to a lawyer, a sexual harassment victim needs to know what he or she can do in the face of harassing behavior.

We set forth the steps that a victim can consider taking, such as documenting the incidents of harassment, finding personal and professional support to address the trauma of sexual harassment, and navigating the administrative process necessary to bring a legal claim. It is important for victims of sexual harassment to realize that they are not alone. The psychological impact of sexual harassment is often serious and seeking comfort from friends and family, and even the help of a trained mental health care professional, can be beneficial to a victim's mental and physical well-being. A mental health care professional can also prove helpful in a resulting lawsuit.

Pregnancy and pregnancy leave discrimination are forms of gender discrimination. Gender discrimination can overlap with sexual harassment, but gender discrimination has different legal elements. A chapter in this book describes gender discrimination and focuses on statues that provide for pregnancy and family leave under federal and California laws. There are several different statutes which provide for leave. Having a baby should be a joyous time, yet due to the rising problem of "maternal profiling," it has increasingly become a very stressful time. Pregnancy should not put a woman's employment in jeopardy or bar her from an employment opportunity. If a woman is discriminated against because of her pregnancy, she can find the laws that are designed to protect her in this book.

Sexual harassment victims may wonder who they can hold responsible for the harassment they have suffered. Depending on the facts of a victim's case and whether the lawsuit is brought in federal or California court, the rules vary on who can be held liable for the damages that the victim suffers from sexual harassment. This book details the liability of employers, supervisors, coworkers and non-employees for sexual harassment and related claims.

In this book you will find that there are additional claims that are often made separately from, or in conjunction with, a sexual harassment claim. Retaliation is a legal claim that allows victims to seek damages for being punished at work by their employer for making sexual harassment or gender discrimination complaints, or for refusing to carry out discriminatory personnel orders. This situation often arises if a sexual harassment victim is fired after complaining to management about the underlying harassment. Other additional claims include torts such as infliction of emotional distress, defamation, assault, and battery.

Please note that sexual harassment laws vary state by state and the information contained in this book applies specifically to the federal and California laws that affect acts of sexual harassment in the state of California. A victim must follow the practical steps with the California Department of Fair Employment and Housing (DFEH) and/or the federal Equal Employment Opportunity Commission (EEOC) in order to ensure that their legitimate claim is not dismissed as a result of not following administrative procedures in the allotted time.

This book focuses on civil lawsuits for damages for sexual harassment as opposed to criminal action that would be brought by a district attorney. A severe act of sexual harassment such as rape is an example of a crime for which charges would be brought by a district attorney in a criminal case. When rape occurs in the workplace, it can also be grounds for a civil action for damages to compensate the victim.

There is a difference between consensual and unwelcome behavior. In the context of a criminal case, consent to an act is a defense for the defendant, but consent is not a defense in a civil lawsuit for sexual harassment. A major criterion in a civil lawsuit is whether the act was wanted or unwanted. This concept recognizes the pressures that a victim can be under when a supervisor or boss uses the power and control of advances or demotion in the workplace in exchange for sexual favors.

Sexual harassment is not only a legal problem, but also a social and emotional problem; it is therefore important to address all aspects of the problems that victims of sexual harassment face. People in power in the workplace who sexually harass subordinates are typically exhibiting controlling and abusive behavior to exploit subordinates sexually with the manipulative leverage of advancement in the workplace and/or with the threat of adverse employment consequences. It is important that a victim find legal counsel who understands that an integral part of aiding a victim of sexual harassment is not just taking legal steps, but is also providing support to help the victim heal from the emotional scars left in the wake of sexual harassment in the workplace.

Chapter One. What is Sexual Harassment?

I. Overview

Sexual harassment can happen anywhere, but this book is focused on sexual harassment in the workplace. Sexual harassment in the workplace is prohibited by federal and California statutes. Sexual discrimination is also prohibited by statutes and in this chapter we explore the difference between sexual harassment and sexual discrimination. We also give general examples of sexual harassment and sexual discrimination in the workplace. Additionally, we introduce the applicable California and federal statutes. In Chapter Two, we give more specific examples of what constitutes sexual harassment in the workplace.

Generally, sexual harassment can include any offensive or unwelcome attention of a sexual nature. For example, you may be sexually harassed by someone whistling at you as you walk down the street or calling you a demeaning name at a neighborhood bar. While these events can be traumatizing and harassing, for the purposes of this book, sexual harassment is limited to unwanted offensive conduct in the workplace, directed at an employee due to the employee's sex.

Workplace sexual harassment violates both federal and California law. Sexual harassment includes quid pro quo sexual harassment and hostile work environment sexual harassment. Quid pro quo sexual harassment occurs when a term of employment is expressly or implicitly conditioned upon acceptance of an unwelcome sexual advance. (1) Hostile work environment sexual harassment occurs when an employee is subject to unwelcome sexual or gender-related conduct that is sufficiently severe or pervasive to create a hostile or abusive working environment.

II. Distinction Between Sexual Harassment and Gender

Discrimination

Sexual harassment is not only morally wrong, it is also against the law. The California Fair Employment and Housing Act (FEHA) and the United States Federal law in Title VII of the Civil Rights Act (Title VII) prohibit discrimination and harassment based on the sex of an employee.

It is not necessarily harassment if your supervisor or employer is being tough on you in an effort to follow through and get the job done. Harassment is conduct that is not necessary for the performance of a supervisory job, but is instead outside the scope of necessary job duties.

Under the California statute, FEHA, an employer of five or more employees can be liable for discrimination, but for liability for harassment an employer only needs to have one or more employees.

The California Supreme Court, in deciding the case of _Jones v. The Lodge at Torrey Pines Partnership_ , (2) relied on _Janken v. GM Hughes Electronics_ (3) in its summary of the distinction between harassment and discrimination. The California Supreme Court quoted the _Janken_ court's conclusion that:

the Legislature's differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor's job performance, and business or personnel management decisions – which might later be considered discriminatory – as inherently necessary to performance of a supervisor's job....

Harassment 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....

Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties. (4)

III. Examples of Sexual Harassment

According to the California Code of Regulations, (5) harassment includes:

• Verbal Harassment;

• Physical Harassment;

• Visual Forms of Harassment (posters, cartoons, drawings, etc.); and

• Sexual favors.

The two main categories of sexual harassment are "quid pro quo" harassment and "hostile work environment" harassment. Sexual harassment can include non-sexual behavior, such as male supervisors yelling in the workplace at female employees in a more forceful or frequent manner than at male employees.

To help give you a better idea of what constitutes sexual harassment, the following is a factual checklist to guide you at a glance. However, every case is unique and should be analyzed based on its own set of facts and surrounding circumstances.

• If your supervisor has asked you for a sexual favor in exchange for a job benefit, you almost certainly have a case for quid pro quo sexual harassment. (6)

• If your supervisor has threatened to harm your job security or conditions if you do not perform a sexual favor for him or her, you almost certainly have a case for quid pro quo sexual harassment. (7)

• If your supervisor yells at women in your office more forcefully and more often than he or she yells at men, you might have a case for hostile work environment sexual harassment. (8)

• If you are being severely or pervasively harassed at work in California because of your sexual orientation, or because of your perceived sexual orientation, you most likely have a case for hostile work environment sexual harassment. (9)

• If you suffer an adverse employment action, such as being demoted or terminated from your job, because you filed a complaint for sexual harassment, or because you helped a coworker file a sexual harassment complaint, you most likely have a case for unlawful retaliation. (10)

• If you are exposed to severe or pervasive sexually graphic language, gestures, or images at work, and the reasonable person in your position would find such conduct to be hostile or abusive, then you might have a case for hostile work environment sexual harassment, but it will depend on all the surrounding circumstances. (11)

Sexual harassment covers considerably more ground than a supervisor or employer threatening to fire you if you refuse sexual advances. Although every case has a unique set of surrounding circumstances, courts have held that the following behavior, when it is sufficiently pervasive (repeated) or severe, can constitute illegal sexual harassment:

• Offensive sexual comments, including repeated sexual innuendo, slurs, crude remarks, and obscene stories or jokes. (12)

• Sexual propositions, insults, and threats. (13)

• Sexually oriented demeaning name calling. (14)

• Persistent unwanted sexual or romantic proposals or attention. (15)

• Leering, staring, whistling, or other sexually suggestive sounds or gestures. (16)

• Displaying pornographic pictures, calendars, cartoons, websites, or other sexually explicit material in the workplace. (17)

• Coerced or unwelcome touching, pinching, kissing, stroking, massaging, squeezing, fondling, or spanking. (18)

• Explicit or implicit pressure for sexual favors. (19)

• Coerced sexual intercourse that is demanded as a condition of employment. (20)

IV. Examples of Gender Discrimination

Gender discrimination refers to discrimination by management in personnel decisions based on an employee's sex. The following is a situational checklist to guide you in determining what types of workplace decisions constitute actionable gender discrimination. However, as with sexual harassment cases, every gender discrimination case is unique and should be analyzed based on its own distinctive set of facts.

• If you are a woman and you are demoted or suffer other adverse employment action because your employer thinks you are not "lady-like," you are likely to have an actionable claim for gender discrimination. (21)

• If you are fired because you are pregnant, you almost certainly have a case for unlawful discrimination based on your sex. (22)

• If you are discriminated against and treated differently at work because of your gender, you might have a case for gender discrimination depending on the facts of your case.

• If you have small children and are treated differently at work than coworkers of the opposite sex with small children, and such treatment is adversely affecting your employment, you might have a case for discrimination on the basis of your sex. (23)

V. Controlling Law

In the following chapters, we refer to statutes and legal opinions from cases. If you are interested in learning more about the laws described in this book, you can find the sources in the endnotes which will aid further research.

The state of California has its own sexual harassment laws embodied in the Fair Employment and Housing Act (FEHA). (24) A sexual harassment victim in California has the option to file under California law, but also has the right to file under federal law. The applicable federal law is Title VII of the Civil Rights Act (Title VII). (25)

Both FEHA and Title VII are interpreted by case law. The applicable legal opinions for FEHA are handed down by the courts of California, particularly the California Supreme Court and the California Courts of Appeal. The California laws and court opinions tend to provide more rights to sexual harassment victims than Title VII and its interpretation by the federal courts. However, the state law of California cannot be applied or interpreted to be more restrictive than the minimum rights afforded by federal law.

The United States Supreme Court and the Ninth Circuit Court of Appeals, which includes in its federal jurisdiction the state of California, are controlling in regard to the federal law as applied in California and are very influential in regard to the interpretation of sexual harassment laws in California, because Title VII and FEHA are similar. Federal case law outside of the Ninth Circuit Court of Appeals is influential and persuasive, but not necessarily controlling. Federal case law is informative for the general interpretation of sexual harassment laws.

FEHA at California Government Code Section 12930 (e) gives the Department of Fair Employment and Housing (DFEH) the power to "adopt, promulgate, amend, and rescind suitable rules and regulations." (26) The California Code of Regulations governing harassment and discrimination is created by the DFEH to interpret FEHA. Although the California Code of Regulations is not binding on California courts, courts will give great weight to an administrative agency's regulations and interpretation of the statutes under which it operates. (27)

Although rarely used, there is also a provision in the California State Constitution that states, "A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin." (28)

VI. Questions and Answers on Specific Examples

of Workplace Behavior

The following are examples of real life situations which you may be facing, and answers about whether such behavior constitutes facts sufficient to make a workable sexual harassment or discrimination case. While the individual facts of your case are unique to your situation, these examples should serve as a guideline in determining whether your situation is appropriate to bring to the attention of a lawyer.

Is teasing sexual harassment?

Teasing alone is not generally unlawful. The United States Supreme Court has noted that Title VII is not a "general civility code." (29) In other words, it is not meant to force people to be nice to one another.

The standards for unlawful discriminatory harassment are designed to filter out lawsuits by plaintiffs that are based on "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." (30)

In order for harassment to have created a hostile work environment, it must be sufficiently severe or pervasive as judged by a reasonable person in the complainant's position, considering all the circumstances. If teasing is based on sex, and reaches a sufficiently severe or pervasive level, then it constitutes unlawful sexual harassment. The harassment does not necessarily need to involve physical touching to be considered sexual harassment.

If an employee eventually has a consensual relationship with the harasser, is it still sexual harassment?

If the harasser's behavior was unwelcome, severe and pervasive to begin with, there might have been a hostile work environment before the relationship became consensual and wanted. Also, if there were unwelcome sexual advances which the employee complied with in exchange for employment benefits, or to avoid an employment detriment, then the employee may have suffered unlawful quid pro quo sexual harassment. However, while this conduct may technically have been unlawful sexual harassment, it may be very difficult to convince a jury that such behavior was unwelcome, hostile, or abusive if the employee decided to engage in a relationship with the harasser after the fact.

Can I sue someone for sexual harassment after ending a consensual relationship?

If you have ended a consensual sexual or romantic relationship with someone at work, and your former partner will not stop trying to get you to return to the relationship, then you may have a sexual harassment claim. If your former partner makes getting back into a relationship a condition of your continuing employment, then such conduct may constitute quid pro quo sexual harassment. If your former partner is creating a sufficiently severe or pervasive hostile environment for you at work because you refuse to continue or resume the relationship, this may constitute hostile work environment sexual harassment. The problem with claims of sexual harassment after the end of a consensual relationship is that it may be harder to prove that the harasser's conduct is indeed hostile or unwanted.

Can one incident constitute sexual harassment?

In quid pro quo sexual harassment cases, where submission to sexual conduct is made a condition for receiving concrete employment benefits or for avoiding a job detriment, it is clear that a single sexual advance can be considered unlawful sexual harassment.

However, in hostile work environment sexual harassment cases, whether a single incident constitutes unlawful sexual harassment depends upon whether the conduct was sufficiently severe to constitute a hostile work environment. While it is possible, it may be more difficult to prove depending upon the severity of the harassment.

My coworker flirts with me at work even though I wish he would not. It makes me uncomfortable. Is this sexual harassment?

It can be difficult to determine whether flirting at work is sexual harassment without knowing the exact facts of a case. However, when flirting at work is unwanted and severe or pervasive, a court may decide that it constitutes unlawful sexual harassment. Because there can be some uncertainty about whether flirting or advances are unwanted, it is important for the offended person to make it clear that the flirting or advances are unwanted.

What is flattering to some, can be hostile and abusive to others. A court will examine how the behavior would affect a reasonable person in the employee's situation. If the employee is especially sensitive and offended by banter that most would find innocent, then the employee most likely does not have a viable sexual harassment case.

Can favoritism for one employee due to sexual favors be actionable by other employees?

If one employee is rewarded in the workplace (promoted, given better work assignments, not reprimanded when appropriate) as a result of cooperative sexual relations at the expense of other non-favored employees in the workplace, this may be evidence of a hostile work environment. (See the discussion of _Miller v. Dept of Corrections_ in Chapter Two, Section VII (B) on favoritism in the workplace.) However, these cases can be difficult to prove, and a lawsuit may not be the best option.

VII. Conclusion

Only acts of sexual harassment in or relating to the workplace are protected by the federal and California statutes, Title VII and FEHA. Gender discrimination, which sometimes overlaps with sexual harassment, is also prohibited by those same statutes. Generally, sexual harassment involves unwelcome sexual advances, while sexual discrimination involves personnel decisions by supervisors.

Chapter Two. Quid Pro Quo Sexual Harassment and Hostile Work Environment Sexual Harassment

I. Introduction

In this chapter we describe and give examples of both quid pro quo sexual harassment and hostile work environment sexual harassment. Quid pro quo sexual harassment generally involves a person in power pressuring an employee for sexual favors in exchange for advancement in the workplace or under the threat of adverse employment action. A single instance of quid pro quo sexual harassment is sufficient for the basis of a lawsuit. In contrast, a single incident of hostile work environment sexual harassment does not qualify as a sufficient basis for a lawsuit, unless the incident is "severe," that is unless the incident is very offensive.

In this chapter, we give examples of actual cases where the courts have found that the conduct involved was sufficiently severe or pervasive for the purposes of bringing a lawsuit, and we give examples where the courts have found that the conduct involved was insufficient to support a lawsuit for hostile work environment. A victim of sexual harassment should look for a case that parallels his or her experience in the workplace.

We also discuss indirect victims of sexual harassment who under certain circumstances can also bring claims and lawsuits for sexual harassment, even though the harassing behavior was not directed to them.

II. What is Quid Pro Quo Sexual Harassment?

"Quid pro quo" translates from Latin to English as "this for that." The basic idea is that of an exchange. I do something for you, and you, in turn, do something for me. You may have heard the saying, "You scratch my back and I'll scratch yours." This conveys the same underlying message, and it is what is at the heart of quid pro quo sexual harassment claims.

Quid pro quo sexual harassment occurs when a supervisor makes sexual conduct of an employee a condition for employment benefits or advancement, or a condition for avoiding adverse employment action. Adverse employment action may include poor performance reviews and preclusion from advancement or salary increases.

In the case of _Mogilefsky v. Superior Court_ , (31) the court summarized what constitutes quid pro quo sexual harassment, stating:

A cause of action for quid pro quo sexual 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 the 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. (32)

A. What Must a Victim Show to Prevail on a Quid Pro Quo Sexual Harassment Claim?

A victim must show by a preponderance of the evidence that the harasser made unwanted sexual advances or directed behavior of a sexual nature to him or her as a condition for receiving concrete employee benefits and/or for avoiding adverse employment action. A "preponderance of the evidence" means that after looking at all the evidence, it is more likely than not that the claimed events occurred.

California Judicial Council Jury Instruction, CACI 2520 (33) states that in order to prove quid pro quo sexual harassment against an employer, a victim must prove the following factual elements:

1. That the plaintiff was an employee of the defendant, applied to the defendant for a job, or was a person providing services pursuant to a contract with the defendant;

2. That the alleged harasser made unwanted sexual advances to the plaintiff or engaged in other unwanted verbal or physical conduct of a sexual nature;

3. That job benefits were conditioned, by words or conduct, on the plaintiff's acceptance of the alleged harasser's sexual advances or conduct; or that employment decisions affecting the plaintiff were made based on the plaintiff's acceptance or rejection of the harasser's sexual advances or conduct;

4. That at the time of the alleged harasser's conduct, the alleged harasser was a supervisor or agent for the defendant;

5. That the plaintiff was harmed; and

6. That the alleged harasser's conduct was a substantial factor in causing plaintiff's harm.

CASE IN POINT: Unwanted Sexual Proposition in Exchange for Offer of Promotion

In _Bihun v. AT &T Information Systems, Inc._, (34) the plaintiff, Oksana, sued for sexual harassment by a senior official, Peter Fellows. On Fellows' and Oksana's first meeting, he winked at her and lightly brushed his hand against hers. Later that month, Fellows walked into to the office Oksana was in with his shirt off and pants unzipped. He pressed his body against Oksana's shoulder and she left the office immediately. On another occasion at a birthday luncheon, Fellows rubbed Oksana's leg with his foot. After she kicked it away, Fellows stood, thrust his groin at her, and told her that there was a food stain on the groin area of his pants and asked her to rub it off.

Later that same day, Fellows told Oksana to come to his office. After Oksana entered his office, Fellows asked her to have dinner with him that evening. She said no. He then asked her to go to the beach with him. She said no.

The following week, Fellows came into Oksana's office and told her that they were having dinner together that night. Oksana said no, but Fellows insisted, telling her it was "strictly business." Oksana felt like she could not refuse. They met at the restaurant and Fellows gave Oksana flowers. He told her that he was unhappy about his sex life with his wife, and so needed to have affairs with other women. Fellows then told Oksana that the company was going to have a large reorganization soon and that "if she played her cards right" she could have any job she desired. He asked Oksana if she wanted a particular coworker's job, remarking that he could make that coworker disappear. Fellows then leaned over Oksana, played with her earring, and asked her to have an affair with him. He then told her that he once hired a waitress to be his secretary because of her large breasts.

The next day, Oksana told a coworker about what had happened. The coworker went to Fellows and complained, but Fellows told her that it was none of her business. After that point, Fellows cupped Oksana's breast as they passed in a hallway, asked her if she had "softened up yet" and asked her if she had changed her mind. She had not.

Fellows then retaliated against Oksana for rejecting him. He ultimately took all of her responsibilities away, leaving her nothing to do at work. Oksana went on disability leave. She complained several times to supervisors, but no one ever contacted her or her coworker regarding the complaints. When she did return to work, she was demoted. Oksana then resigned. Oksana won her case against her employer on her claims of sexual harassment and retaliation.

III. What is Hostile Work Environment Sexual Harassment?

"Hostile work environment" sexual harassment occurs when an employee is subject to unwelcome advances, sexual innuendos, or offensive gender-related language that is sufficiently severe or pervasive from the perspective of a reasonable person of the same gender as the offended employee.

This type of harassment must be sufficiently severe or pervasive to alter the conditions of the offended employee's employment and create an abusive environment. A single instance of sexual harassment in the hostile work environment context may be sufficient if the conduct is severe enough, but repeated instances increase the pervasiveness of the events, so that a reasonable person would be more likely to find the conduct sexually harassing due to its repetition.

It is possible for an employee to make a hostile work environment claim when the harassment is not directed to the complaining employee, if the harassment permeated the complaining employee's work environment. Thus, an employee can make a hostile work environment claim if the employee witnessed the harassing conduct and the conduct was severe or pervasive enough to be considered harassment by a reasonable person with the same fundamental characteristics (e.g., age, race, gender) as the complaining employee.

Although favoritism by a supervisor towards an employee with whom the supervisor is having a consensual sexual affair does not ordinarily constitute harassment of other employees, a pattern of sexual favoritism may constitute a hostile work environment in the event that the message by management is that sexual affairs are a way to get ahead in the workplace. (35)

A. What Must a Victim Show to Prevail on a Hostile Work Environment Sexual Harassment Claim?

A victim must establish that:

1. He or she was subject to unwelcome sexual harassment;

2. The harassment was based on the victim's sex;

3. The harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and

4. The relationship between the employer and the person committing the harassing conduct is adequate to impose liability on the employer. (See Chapter Five, Employer and Individual Responsibilities for further discussion of an employer's liability for sexual harassment.)

IV. What is Not a Hostile Work Environment?

FEHA prohibits harassing conduct that creates a hostile work environment on the basis of sex. Keep in mind, however, that every case is different, and the full context and surrounding circumstances must be taken into consideration. (36) The following Case In Point is an example of a case where the Supreme Court of California found no hostile work environment sexual harassment where the sexual conduct was not directed at the plaintiff and was not sufficiently severe or pervasive considering the social context.

_CASE IN POINT:_ **The** _Friends_ **Case**

You may associate the hit TV sitcom _Friends_ with the catchy "I'll be There for You" theme song, comedic one-liners, and the never-ending relationship saga of Rachel and Ross. This TV show also made its way into the sexual harassment law arena in 2006 through the California Supreme Court case of _Lyle v. Warner Bros. Television Productions_ (37) (" _Lyle_ " or " _Friends_ ").

In the _Friends_ case, a female writer's assistant filed suit against male comedy writers for sexual harassment. The case revolved around whether the writers' conduct, which included sexual antics, graphic sexual discussions, and lewd gestures such as pantomiming of masturbation, constituted a work environment which was hostile and abusive on the basis of sex.

In order for there to be a hostile work environment, sexual harassment must be sufficiently severe or pervasive from the perspective of a reasonable person with the same fundamental characteristics of the plaintiff.

The California Supreme Court in the _Friends_ case found that the writers' sexual behavior was not sufficiently severe or pervasive because the sexual conduct was not directed at the plaintiff or other women in the workplace and because the _Friends_ production was a creative workplace focused on writing scripts for a sexually-themed comedy show. (38) The California Supreme Court said, "Because the derogatory comments did not involve plaintiff, she was obligated to set forth specific facts from which a reasonable trier of fact could find the conduct 'permeated' her direct workplace environment and was 'pervasive and destructive.'" (39)

In determining whether conduct permeated the purported victim's work environment and was pervasive and destructive, the trier of fact should consider all the surrounding circumstances of the case. In the _Friends_ case, the California Supreme Court found that the writers' conduct did not constitute unlawful harassment and was "neither surprising nor unreasonable from a creative standpoint." The Court said, "Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing... and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive." (40)

In other words, whether sexual conduct will permeate a victim's workplace and be pervasive and destructive will depend on what type of job the victim holds. For example, if the explicit sexual behavior of the writers in _Friends_ , such as telling graphic sexual stories and pantomiming of masturbation, took place instead at an accounting firm's daily meetings over an extended course of time, it may very well be pervasive and destructive. On the other hand, if a female bartender is working at a strip club, and is exposed daily to graphic sexual conduct, the social context would indicate that the behavior is not pervasive and destructive and does not create a hostile work environment.

V. Harassment Must Be Based on Gender

In order to prove that the harassment a victim suffered was based on his or her sex, the victim must show that he or she was treated differently because of the victim's sex. When the sexual innuendos or gender-related speech, such as talk of sex in the workplace, crude language, or vulgar gestures, are directed toward an employee or toward the employee's gender in general, this conduct will constitute hostile work environment sexual harassment if it is sufficiently severe or pervasive.

This does not require that the harasser be a different sex than the harassed. Both California courts and the Supreme Court of the United States have found that harassment in the workplace can violate the law against discrimination "because of sex" when the harasser and the harassed are of the same sex. (41)

A. Hostile Work Environment Must Be Based on Gender, But Need Not Necessarily Be Sexual in Nature

Hostile work environment sexual harassment need not necessarily be based on language or conduct of a sexual nature. What is necessary is that there is a hostile work environment because of the victim's sex. If a female employee is being harassed at work because her supervisor is misogynistic (dislikes women), and the supervisor's harassment is creating a hostile work environment, then the employee has the basis for a lawsuit. (42)

CASE IN POINT: Yelling in the Workplace

Screaming and yelling by male supervisors to female employees at work may constitute sexual harassment that is actionable if the screamer yells more forcefully or more frequently at female employees than at male employees and in a manner that affects women more adversely than it affects men in the workplace. Such non-sexual behavior can constitute sexual harassment in the nature of a hostile work environment, as confirmed in the case of _EEOC/Christopher v. National Education Association_ (43) by the Ninth Circuit of the United States Court of Appeals in 2005.

In that case, three women sued their employer for sex-based hostile work environment due to the behavior of their supervisor, Thomas Harvey. Harvey frequently screamed at his female employees with little or no provocation. The shouting was often profane and in public, and the court found that it clearly intimidated female employees. These incidents between Harvey and female employees were not isolated, but created a "generic atmosphere of intimidation in the workplace" causing them to cry, feel panicked and physically threatened, avoid contact with Harvey, and avoid submitting overtime hours for fear of angering Harvey. Their only options were to call the police and ultimately resign.

The court found that whatever the motive for the harassment, the ultimate question is whether the harasser's behavior affected women more adversely than it affected men. In this case, it was clear that Harvey's behavior affected women more adversely, as his threatening behavior was more frequent and more severe towards women than men.

_Garcia v. Los Banos Unified School District_ (44) supports the finding in _EEOC/Christopher v. National Education Association_ that non-sexual behavior including yelling can constitute sexual harassment if women are subjected to the conduct more often and more intensely than men. In _Garcia_ , the plaintiff's supervisor raised his voice and used profanity with almost everyone in the workplace, both men and women. However, the female plaintiff was subjected to this conduct "more often and more intensely" than men were, and the supervisor's treatment of the plaintiff was "more severely abusive, as distinct from bantering or joking in tone." (45)

The _Garcia_ court confirmed that workplace conduct does not need to involve proposals of sexual activity or be motivated by sexual desire in order for the conduct to constitute hostile work environment sexual harassment. It can be sufficient to compare how the alleged harasser treated members of both sexes in a mixed-sex workplace, and to show that one sex was treated adversely. (46)

VI. Sufficiently Severe or Pervasive

In order for your hostile work environment lawsuit to be viable, the harassment you suffered must be sufficiently severe or pervasive to alter your employment and create a hostile and abusive environment. (47) There is no bright line rule for what conduct is "severe or pervasive enough" to constitute a hostile work environment. There is a level of uncertainty is this area of the law, and both the individual facts of a victim's case and the court in which it is heard will affect whether the misconduct suffered will constitute unlawful sexual harassment.

Although there is not a bright line test in deciding whether harassing conduct is sufficiently severe or pervasive, the case law does give us some guidelines as to what conduct rises to the level of unlawful hostile work environment sexual harassment.

A. What is Sufficiently Severe?

In order for sexual harassment to be sufficiently severe to constitute hostile work environment sexual harassment, it must be seriously offensive and egregious conduct. Severity depends on the gravity and threatening or abusive nature of the harassing conduct.

Offensive touching or threatening behavior can constitute conduct that is sufficiently severe to create a hostile work environment. The California Supreme Court in the _Friends_ Case ( _Lyle_ ), stated that if harassment is not "severe in the extreme," more than a few harassing incidents must have occurred to create a hostile work environment. The Court recognized that in order for a single incident of harassment to be sufficiently severe, it must involve "egregious conduct akin to a physical assault or threat thereof."

Whether offensive touching will be considered severe will depend on how offensive and extreme the touching is. For example, rape, the most offensive and threatening kind of touching, clearly will be considered sufficiently severe. Conversely, mildly offensive touching, such as touching of a purported victim's hair (48) or arms, (49) most likely will not be considered sufficiently severe to create a hostile work environment. Most cases are not clear cut, and it will be up to a judge or jury to decide whether the particular harassment suffered by a victim is sufficiently severe to create a hostile work environment.

B. What is Sufficiently Pervasive?

Harassment is sufficiently pervasive if it permeates the workplace and alters the victim's working conditions so as to create a hostile and abusive working environment. The California Supreme Court in the _Friends_ case ( _Lyle_ ) summarized what is necessary for harassment to be considered sufficiently pervasive and said:

With respect to the pervasiveness of harassment, courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. (50)

For example, if your supervisor asks you for a date a few times over the course of a few months, even after your immediate refusal to each invitation, this most likely will not be considered sufficiently pervasive. Although such romantic requests may offend you or cause you to feel awkward, such behavior is not so repetitive and intrusive that it permeated your workplace, creating a destructive and abusive environment.

On the other hand, if your supervisor is propositioning you at work every day, staring at you in a threatening way, and talking explicitly about the sexual things he or she imagines you engaging in, this pattern of harassment permeates your workplace and creates a destructive and abusive environment.

C. Is a Single Incident Enough?

While a single incident of sexual harassment may be sufficient to establish a hostile work environment, it is much more difficult to prove. The less frequent the harassment, the more severe it must be to constitute an unlawful hostile work environment to meet the sufficiently severe or pervasive standard. In order for a single instance of sexual harassment to constitute a hostile work environment, it generally must involve offensive touching or threatening behavior, as explained by the California Supreme Court in the _Friends_ case ( _Lyle_ ). (51)

A case involving racial discrimination is instructive. In _Dee v. Vintage Petroleum, Inc._ , (52) the court found that a hostile work environment could be inferred from a single racial slur plus other evidence of abuse by the plaintiff's supervisor. In that case, where there was a remark by the supervisor that "it is your Filipino understanding versus mine" after the plaintiff complained that the supervisor told her to lie, it was reasonable to infer that this statement was not an isolated event, but instead that it explained the supervisor's motivation for creating an abusive environment for plaintiff to intimidate her so that she would not complain to higher management.

In _Brooks v. City of San Mateo_ , (53) the court stated, "[A] sexual assault by a supervisor, even on a single occasion, may well be sufficiently severe so as to alter the conditions of employment and give rise to a hostile work environment claim." (54)

However, in _Lyle_ , the California Supreme Court stated:

When the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions. (See _Herberg v. California Institute of the Arts_... [liability for sexual harassment may not be imposed based on a single incident that does not involve egregious conduct akin to a physical assault or threat thereof]). (55)

But physical conduct is not always unlawful sexual harassment. For examples, in _Downes v. F.A.A_ (56) the court ruled that touching of the plaintiff's hair on two occasions was not pervasive. Surely it makes sense that all physical contact is not sexual harassment; the contact must be offensive and severe. Shaking someone's hand, or similar physical conduct that is not offensive, would not cause a hostile work environment.

A court will consider the totality of the circumstances in order to determine if the facts of a victim's case rise to the level of unlawful hostile work environment sexual harassment.

D. Look to the Totality of the Circumstances

The setting and atmosphere in which harassing behavior takes place will impact whether the harassment is sufficiently severe or pervasive to create a hostile work environment, and courts will look to the "totality of the circumstances" in making this determination. (57)

In looking at all the circumstances of a case, special attention should be given to the conduct's frequency, severity, whether the conduct interferes with the purported victim's work performance, and whether it is threatening and/or humiliating, or instead is "merely an offensive utterance." (58)

Taking into consideration the totality of the circumstances also means that the trier of fact will take into account the social setting of the purported victim's workplace. In the _Friends_ case, the fact that the defendant comedy writers' sexual behavior took place in a setting in which they were brainstorming material for a sexually-charged comedy show and that the plaintiff had been warned when she was hired that she would be exposed to sexual jokes (59) affected the Court's decision that the sexual behavior was not sufficiently severe or pervasive to create a hostile work environment. The California Supreme Court in the _Friends_ case ( _Lyle_ ) said:

The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering "all the circumstances."... That inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. (60)

In regard to retaliation claims, the California Supreme Court's opinion in _Yanowitz v. L'Oreal USA, Inc_ , (61) parallels the above consideration of the totality of the circumstances. (See Chapter Six on retaliation for further discussion.)

In order to give you a better understanding of what types of factual scenarios are considered by the courts to be severe or pervasive enough, in the next two sections we summarize the facts of a variety of cases where courts deemed the behavior involved could constitute unlawful hostile work environment harassment and where courts found behavior insufficient to constitute a hostile work environment. Both federal and California cases are included because according to the California Supreme Court, in light of the many similarities between Title VII and FEHA, "California courts frequently seek guidance from Title VII decisions when interpreting the FEHA and its prohibitions against sexual harassment." (62)

E. Conduct Sufficiently Severe or Pervasive to Create an Unlawful Hostile Work Environment

The following Cases In Point demonstrate conduct that can be considered sufficiently severe or pervasive to find hostile work environment sexual harassment.

_Case in point:_ _Coerced Sexual Behavior_

In the United States Supreme Court case of _Meritor Savings Bank v. Vinson_ , (63) the plaintiff agreed to over 40 acts of intercourse with her supervisor after repeated demands for sexual favors. The supervisor "fondled her in front of other employees, followed her into the women's restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions." (64) This set of facts obviously rose to the level of being sufficiently severe to constitute an unlawful hostile work environment.

_Case in point:_ _Foul Language_

In _Department of Fair Employment and Housing v. Nulton_ , (65) there was a hostile work environment where, among other things, a male employee's repeated use of foul sex-based terms, such as "f-ing b-----" and others was severe within the meaning of FEHA "given these sex-based terms' inherently degrading and demeaning nature." (66)

_Case in point:_ _Offensive Sexual References_

In _Steiner v. Showboat Operating Company_ , (67) the Ninth Circuit found conduct sufficient to constitute a hostile work environment where the defendant had used the terms "dumb f-ing broad" and "f-ing c----." (68) Even though the supervisor in that case was shown to be abusive to men, his abuse of women was different in that he relied on "sexual epithets, offensive, explicit references to women's bodies and sexual conduct." (69) Similarly, in _Burns v. McGregor Electronic Industries, Inc._ , (70) the Eighth Circuit Court stated that vulgar and offensive phrases are "widely recognized as not only improper, but as intensely degrading."

_Case in point:_ _Pornographic Pictures_

In _Andrews v. City of Philadelphia_ , (71) the defendant used derogatory and insulting terms relating to women and posted pornographic pictures in common areas at the place of employment, as well as in the plaintiff's personal work spaces. The Federal Third Circuit Court of Appeal found: "pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile work environment." (72)

_Case in point: N_ _icknames and Centerfolds_

In _Lispett v. University of Puerto Rico_ , (73) sexual harassment was found where the plaintiff and other female residents were given sex-based nicknames, _Playboy_ centerfolds were displayed where residents ate their meals and conducted meetings, and misogynistic verbal attacks were repeatedly made.

_Case in point:_ _Threatening Stares_

In _Birschtein v. New United Motor Manufacturing, Inc._ , (74) the court found that where a coworker repeatedly stared at the plaintiff, after the plaintiff had already complained to management about the coworker's explicit acts of sexual harassment, such facts could constitute an unlawful hostile work environment, and so reversed the summary judgment that had been granted by the lower court.

Coworker Bonilla had asked the plaintiff, Michelle, for a date three or four times. During this same time period, he had told her that he wanted to "eat her." When Michelle asked him what he meant, Bonilla responded, "I want to eat you all over." Upon hearing his response, Michelle yelled at him to leave. A few days later Bonilla told Michelle that he was having fantasies about her and described his fantasies in detail, which involved Bonilla putting Michelle in a bathtub and bathing her. Again upset, Michelle yelled at Bonilla to leave her alone. During the same period when Michelle would go outside for lunch and breaks, coworkers would tell her that Bonilla was looking for her. Michelle was so scared that she carried mace to work and complained to her boss. Following Michelle's complaint, Bonilla stopped talking to Michelle, but over the course of six months he would drive by her workstation five or more times per day to make deliveries and would invariably stare directly at her "for at least several seconds."

The court found that threatening stares could constitute sexual harassment, and stated:

Nor can we agree that, particularly in view of Bonilla's prior conduct, repeated acts of _staring_ at a fellow worker cannot qualify as actionable sexual harassment as a matter of law... In _Hirase-Doi v. U.S. West Communications, Inc_...., (75) for example, a hostile environment case, the plaintiff alleged that Coleman, a fellow male employee, had engaged in sexually offensive behavior toward her and several female colleagues over several months. Much as defendant does here, the employer there argued that many of the plaintiff's complaints 'involved only _threatening stares_ \- not sexual harassment.' (76)... Rejecting the contention that threatening stares could not constitute actionable sexual harassment, the Tenth Circuit Court of Appeals said that "we have previously adopted a standard that 'any harassment or other unequal treatment of an employee... that would not occur _but for the sex_ of the employee may, if sufficiently... pervasive, comprise an illegal condition of employment under Title VII.'... We believe that Coleman's alleged _threatening stares_... in apparent _retaliation for the complaints_ about his sexual harassment, were sufficiently related to the prior alleged sexual harassment that they could be found to constitute continuing sexual harassment..."

_Case in point:_ _Verbal Abuse and Touching_

In _Hall v. Gus Const. Co., Inc._ , (77) the plaintiff suffered from continuous verbal abuse, requests for sex, unwanted touching at work, and urinating in the plaintiff's water bottles and gas tank. This pattern of continuous harassment constitutes unlawful hostile work environment sexual harassment.

_Case in point:_ _Preferential Treatment for Submission_

In _Broderick v. Ruder_ , (78) the plaintiff was sexually harassed by several male supervisors and was able to show that the employer gave preferential treatment to female employees who submitted to sexual advances and conduct, and that it was common knowledge at the workplace that women were treated better if they submitted to sexual conduct. This set of circumstances constituted an unlawful hostile work environment. (79) (See the discussion of _Miller v. Department of Corrections_ in Section VII of this chapter discussing favoritism.)

_Case in point:_ _Repeated Requests for Sex_

In _Yates v. Avco Corp._ , (80) the plaintiff's supervisors constantly made rude comments to her and repetitively made requests for sexual favors, and this created an unlawful hostile work environment.

In _Henson v. City of Dundee_ , (81) an unlawful hostile work environment was found where a police chief made numerous tirades, used vulgar language, and made demeaning sexual inquiries, as well as repeatedly asking the plaintiff to have sexual relations with him.

In _Bundy v. Jackson_ , (82) the plaintiff's supervisors directed sexual propositions, sexual stereotypes and vulgar language at her, such as "any man in his right mind would want to rape you." (83) The court found that such misconduct constitutes an unlawful hostile work environment.

_Case in point:_ _Vulgar Slurs_

In _Katz v. Dole_ , (84) a female air traffic controller was subjected to an unlawful hostile work environment where her coworker had routinely inflicted extremely vulgar and offensive sexual slurs and insults.

F. Conduct Not Sufficiently Severe or Pervasive to Create an Unlawful Hostile Work Environment

The following Cases In Point demonstrate conduct which was not sufficiently severe or pervasive to constitute hostile work environment sexual harassment.

_Case in point:_ _Rude and Inappropriate Behavior_

In 2007, in the case of _Mokler v. County of Orange_ , (85) the Director of Orange County's Office on Aging, Pamela Mokler, filed a lawsuit claiming hostile work environment sexual harassment based on the conduct of a board member, Mr. Norby.

Norby's harassment consisted of three incidents over a five-week period. During the lunch break at an offsite budget meeting, Norby asked Mokler if she was married and called her an "aging nun" after she told him she was not married. About a week later at a hotel celebration Norby "took Mokler by the arm, pulled her to his body, and asked, 'Did you come here to lobby me?' When she answered no, Norby responded: 'Why not? These women are lobbying me.' He told Mokler she had a nice suit and nice legs, and looked up and down at her." (86) About a month later, in Norby's office, he told her she looked nice and put his arm around her, asked her where she lived and demanded to know her exact address. He then put his arm around her again, and in the process, his arm rubbed against her breast. He then made an off-color racial remark.The court found that these incidents of harassment did not constitute unlawful hostile work environment sexual harassment because they were not severe or pervasive enough. The court's reasoning went as follows:

Following established precedent, we conclude these acts of harassment fall short of establishing 'a pattern of continuous, pervasive harassment... necessary to show a hostile work environment under FEHA. Norby did not supervise Mokler or work in the same building with her. The first incident involved no touching or sexual remarks; rather, Norby uttered an isolated but boorish comment on Mokler's marital status. The second incident did not occur at work, and involved a minor suggestive remark and nonsexual touching. The third incident involved touching when Norby placed his arm around Mokler and rubbed his arm against her breast in the process. The touching, however, was brief and did not constitute an extreme act of harassment. Norby's request for Mokler's home address was brazen, but this conduct falls short of what the law requires to establish a hostile work environment. Norby's derogatory statement regarding Mexicans was unmistakably foul and offensive, but not sexual.

Taken as a whole, the foregoing acts demonstrate rude, inappropriate behavior. To be actionable, however, a workplace must be "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." (87)

_Case in point:_ _Offensive Artwork_

In _Herberg v. California Inst. Of Arts_ , (88) the court held that a 24-hour display of offensive artwork did not constitute an unlawful hostile work environment. In that case, students at a private art institute displayed a pencil drawing, about 25 by 40 inches, depicting faculty and staff members of the institute nude and engaged in various sexual acts.

Herberg, the 82-year-old plaintiff depicted in the center of the art piece, never actually saw the drawing. Upon learning of the drawing, Herberg left work immediately. She suffered an asthma attack later that day and developed problems with eating and sleeping. She never returned to her job at the institute. The court held that this incident, "although doubtless upsetting to the plaintiffs, did not create a workplace that was 'so discriminatory and abusive that it unreasonably interfere[d] with the job performance of those harassed.'" (89)

The court also takes into consideration the context and surrounding circumstances of harassment. The court in _Herberg_ states:

The context in which the alleged harassment took place... supports our decision.... We see a vast difference between posting obscene cartoons in a men's room, as was done in Bennett (90)... and the display of The Last Art piece in the designated gallery area at an art school. CalArt's noncensorship policy was widely distributed to both students and employees. In our view it was reasonable to expect that exhibitions of student artwork would, from time to time, include sexually explicit material. Although we reject CalArt's contention that its anticensorship policy and the First Amendment exempt it from the laws against sexual harassment, in this case the context of the display further militates against a finding of severe or pervasive harassment. (91)

The _Herberg_ court takes a strict view of what is necessary for a single incident of sexual harassment to constitute an unlawful hostile work environment. _Herberg_ states that in order for liability for sexual harassment for a single incident, that incident must involve "egregious conduct akin to a physical assault or a threat of physical assault." (92)

_Herberg_ goes on to cite three federal cases in which the facts are fairly egregious, but the court did not find hostile work environment sexual harassment. In the worst of these three cited federal cases, the 1987 case of _Del Valle Fontanez v. Aponte_ , (93) the defendant "pressed [the plaintiff] against the door with his body" and the plaintiff "felt defendant's erect sexual organ against her body" twice in a five-minute period, and yet the court found that such conduct was not severe or pervasive enough to constitute a hostile work environment. (94)

State courts in California are not bound by the holdings of these particular federal cases; however, these citations in _Herberg_ are troubling because _Herberg_ is cited by the California Supreme Court in _Lyle v. Warner Bros. Television Prods._ , (95) the _Friends_ case discussed previously. It is likely that the California Supreme Court will uphold the general rule confirmed in _Lyle_ that offensive touching (battery) or threatening behavior (assault) will be sufficient to present a case to a jury to decide if there has been sexual harassment. But see _Downes v. FAA_ (96) below, where a coworker touched a women's hair twice and a court found that was not enough to constitute sexual harassment.

_Case in point:_ _Single Proposition_

In _Jones v. Flagship Intern_ , (97) the plaintiff's supervisor made two suggestive remarks and a single proposition and the court found that this did not amount to an unlawful hostile work environment.

_Case in point:_ _Vulgarity and Nude Pictures_

In _Rabidue v. Osceola Refining Co._ , (98) the court found that the totality of the workplace had not been affected for the plaintiff, even though a coworker was extremely vulgar and nude pictures were present.

_Case in point:_ _Winks and Proposition_

In _Scott v. Sears, Roebuck & Co._, (99) isolated winks, suggestive remarks and a coworker's single request for a date did not constitute unlawful hostile work environment sexual harassment of the plaintiff.

_Case in point:_ _Touching Hair_

In _Downes v. F.A.A._ , (100) the defendant made mildly offensive comments to the plaintiff on three occasions and touched her hair twice. This misconduct was not pervasive enough to constitute an unlawful hostile work environment.

VII. Indirect Victims

An indirect victim is one who is not the direct target of harassment, but who is still in the vicinity of the harassment directed to another and is affected by the harassment.

A. Where Harassing Behavior is Not Directed to Offended Employee

While it is possible to have an actionable claim for sexual harassment where harassing behavior has not been directed to the plaintiff, this is a much harder claim to prove. In cases in which the plaintiff is an indirect victim of harassment, the plaintiff must prove that the sexual conduct permeated his or her direct work environment. (101)

To prove that indirect harassment permeated the workplace, the plaintiff generally must show that he or she personally witnessed the harassment which was directed at others, and that the harassment took place within the plaintiff's immediate work environment. The California Supreme Court in the _Friends_ case ( _Lyle_ ) (102) explained:

Generally... 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 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.

B. Favoritism in the Workplace Can Constitute Unlawful Hostile Work Environment Sexual Harassment of Non-Participating Coworkers

In _Miller v. Dept of Corrections_ , (103) the California Supreme Court ruled by unanimous decision that employees, under certain circumstances, may have a claim for unlawful hostile work environment sexual harassment when a supervisor shows favoritism to his or her coworkers with whom the supervisor is involved in a sexual or romantic relationship.

In _Miller_ , two former employees of the Valley State Prison for Women sued the California Department of Corrections for sexual harassment, complaining about the conduct of the warden.The warden had sexual relationships with at least three female employees. The plaintiffs were not sexually involved with the warden, but claimed that the warden granted unwarranted and unfair employment benefits to the three women because of their sexual affairs with him.

Although this case expanded the scope of hostile work environment claims, the court stated that "mere office gossip" or an "isolated instance of favoritism" by a supervisor toward a subordinate employee he or she is having a consensual sexual relationship with will not constitute unlawful sexual harassment of other coworkers in the office.

The Court notes that where:

such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as 'sexual playthings' or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management.

It is also important to note that not everyone complaining of an office romance will be able to have a viable hostile environment sexual harassment suit. In _Miller_ , the court took into consideration admission by the participants about their sexual relationships with the warden, boasting about preferential treatment, incidents of the warden fondling the participants at work-related social events, promotion of the participants even though they were not qualified, and the warden's own admission that he could not control the participants' behavior at work due to his relationship with them.

**VIII.** **Same-Sex Harassment**

A. Harasser Same Sex as Victim

An employee is entitled to make a claim of sex discrimination, including a claim of sexual harassment, even if the offender is of the same sex, so long as all the elements of the cause of action are established. (104)

It is not necessary for the same-sex harasser to be a homosexual for the victim to have a viable claim. What is necessary is that the victim be harassed in a sex or gender-specific way, or that the victim be treated differently at work because of his or her sex.

Same-sex harassment can be "because of sex" if the harassment attacks the sexual identity of the plaintiff. For example, in _Singleton v. United States Gypsum Co._ , (105) it was considered sexual harassment when male coworkers attacked the male plaintiff's identity as a straight man. (106)

_CASE IN POINT:_ **Same-Sex Harassment**

In the 1998 United States Supreme Court case of _Oncale v. Sundowner Offshore Services, Inc._ , (107) the plaintiff, Mr. Oncale, worked on an oil platform in the Gulf of Mexico. Oncale sued for sexual harassment based on the misconduct of two supervisors and one coworker, who were also male. On several occasions, Oncale was forcibly subjected to sex-related, humiliating actions against him by the defendants, in the presence of the rest of the crew. Two of the defendants physically assaulted Oncale in a sexual manner, and one threatened to rape him. Oncale complained to supervisory personnel, but no action was taken. Oncale eventually quit. He stated, "I felt that if I didn't leave my job, that I would be raped or forced to have sex." (108)

The United States Supreme Court ruled that Title VII's prohibition of discrimination "because of sex" protects men as well as women, and that nothing in Title VII bars a claim of discrimination "because of sex" merely because the plaintiff and the defendant (or the person being charged with acting on behalf of the defendant) are of the same sex. As discussed above in _Lyle_ , all of the surrounding circumstances must be taken into consideration in determining whether the conduct involved in the case rose to the level of creating an unlawful hostile work environment. The _Oncale_ court states:

In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.

IX. Conclusion

The legal requirements for quid pro quo sexual harassment are relatively straightforward. The law prohibits employees being subject to unwanted sexual advances or behavior as a condition for the employee receiving benefits or for avoiding adverse employment action. The more complicated legal requirements are in the area of hostile work environment sexual harassment. The courts have struggled with trying to define what is a sufficiently severe hostile work environment. The California Supreme Court suggests in the _Friends_ case ( _Lyle_ ) that in order to be sufficiently severe for a claim, a single incident of sexual harassment must involve a sexually offensive touching or a threat of offensive physical conduct. As far as the more common hostile work environment that is based on day to day offensive behaviors, the legal requirement is that the victim is obligated to present facts from which a reasonable person can find the conduct permeated the workplace and was pervasive and destructive. The Cases In Point illustrate how difficult it is to describe the rule for what constitutes a hostile work environment, but there are many examples from which a victim may find a parallel to his or her experience in the workplace.

Chapter Three. Gender-Based Discrimination:

Stereotypes and Pregnancy

I. Introduction

Although sexual harassment in the workplace can be considered a form of gender discrimination, in this chapter we refer to gender discrimination as an offense distinct from quid pro quo sexual harassment and hostile work environment harassment. As used here, gender discrimination refers to discrimination by management in personnel decisions based on an employee's sex. Some cases involve women being discriminated against in the workplace in regard to salary or advancement in comparison to men. One Case In Point below talks about imposing stereotypes about how a woman should look in the workplace. This chapter also addresses discrimination directed to women with children or pregnant women.

This chapter discusses the federal Family Leave Act, the California Pregnancy Disability Leave Statute, and the California Family Rights Act. These statutes entitle pregnant women, employees with other disabilities, and employees with family members who need care, to the right to be granted leave from work. Employers can be held liable for violating the rights of employees for leave under these statutes.

II. What is Gender Discrimination?

Gender discrimination occurs when an employer discriminates in hiring or in treatment of employees based on their sex, or in California under FEHA based on their sexual orientation. Under FEHA, at Government Code Section 12926(p), (109) "Sex" includes, but is not limited to, pregnancy, childbirth, medical conditions related to pregnancy or childbirth" and gender. "Gender" encompasses a person's gender identity and gender-related appearance and behavior.

The following Cases In Point give factual examples of where gender-based stereotypes were used to make employment decisions, resulting in successful discrimination lawsuits on the part of the plaintiffs.

_Case in Point_ _: Acting "Like a Lady"_

In the 1989 United States Supreme Court case of _Price Waterhouse v. Hopkins_ , (110) an employer was found to have violated Title VII when it delayed a female employee's promotion based in part on comments by supervisors that she was "macho," that she should "dress more femininely, wear make-up, have her hair styled, and wear jewelry," and that she should "take a course in charm school." The court found that the plaintiff's sex was a motivating role in an employment decision, and therefore, her employer was found liable.

_Case in Point_ _: Women with Children_

Employers sometimes expect women to have certain responsibilities, such as caring for children. In _Phillips v. Marietta Corp._ , (111) an employer did not hire women with preschool-age children, but did hire men with preschool-age children. Even though the majority of the employees were women, there was still discrimination. While the employer was entitled to his opinion that women with young children should not be working, it was unlawful for him to let this opinion affect his employment decisions. As soon as his beliefs affected his hiring decisions, he violated laws against sex discrimination.

A. Gender Stereotypes: Disparate Treatment

The California FEHA and the United States Title VII prohibit discrimination based on the sex of an employee. While employers are allowed to hold their own views and beliefs on gender and society, it is illegal to make employment decisions based on stereotypes regarding the employee's sex. Discriminating against an employee and treating that employee differently because of their sex or gender is also referred to as disparate treatment. Unlike claims for sexual harassment, where only one employee is required for suit against the employer, (112) under FEHA, an employer can only be sued for discrimination if the employer regularly employs at least five people. (113) For violations under Title VII, 15 employees are required for a lawsuit against the employer. (114)

1. Proving Disparate Treatment: The Prima Facie Case

In the case of _Davis v. Team Electric Co._ , (115) the plaintiff, Christie Davis sued for disparate treatment claiming that she was discriminated against and treated differently by her employer because of her sex. In order to prevail on this cause of action, the plaintiff must establish a prima facie case. A "prima facie case" means that a plaintiff has shown all of the necessary elements of his or her cause of action. The _Davis_ court explained that in order to establish a prima facie case of disparate treatment, Christie must show:

(1) she belongs to a protected class; (2) she was qualified for her position; (3) she was subject to an adverse employment action; and (4) similarly situated individuals outside her protected class were treated more favorably. (116)

Disparate treatment claims are subject to burden shifting originally described by the Unites States Supreme Court in _McDonnell Douglas Corp. v. Green_. (117) The _Davis_ Court explains the _McDonnell Douglas_ analysis as follows:

The analysis has three steps. The employee must first establish a prima facie case of discrimination. If he does, the employer must articulate a legitimate, nondiscriminatory reason for the challenged action. Finally, if the employer satisfies this burden, the employee must show that the "reason is pretexual 'either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is untrustworthy of credence.'" (118)

The _McDonnell Douglas_ analysis only applies if there is no direct evidence of the defendant's discriminatory intent. The analysis is used solely as a burden-shifting tool, and is not given to the jury to decide. Instead, the _McDonnell Douglas_ analysis is used during preliminary stages of a lawsuit, such as during a motion for summary judgment.

A motion for summary judgment is made before a case goes to trial. A judge will render a summary judgment prior to a verdict if he or she finds that no material issue of fact exists and therefore, that one party is entitled to a judgment as a matter of law. It is at this stage in a disparate treatment case that the court will use the _McDonnell Douglas_ test in making a decision according to law as to whether there is any triable issue in the case, and therefore determining if it should go on to trial.

The _Davis_ court, (119) quoting _McGinest v. GTE Serv. Corp._ , (120) stated:

In evaluating motions for summary judgment in the context of employment discrimination, we have emphasized the importance of zealously guarding an employee's right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses.

After a judge declines to grant summary judgment, the case must go to trial, and the _McDonnell Douglas_ analysis is no longer applicable.

While the _McDonnell Douglas_ analysis is used by both federal and California courts, cases that are heard directly by the Fair Employment and Housing Commission (FEHC) do not use the _McDonnell Douglas_ analysis. Instead, with the FEHC, (121) discrimination is established if the plaintiff shows by a preponderance of the evidence that there is a causal connection between the plaintiff's protected status and an adverse employment action. This FEHC test is not applicable in federal or California courts.

In Nesbit v. Pepsico, (122) the plaintiffs tried to rely on the DFEH test, but the Nesbit court ruled that the DFEH test is only applicable in cases before the FEHC. The Nesbit court explains:

the Commission abandoned the McDonnell Douglas framework only for cases brought before the Commission. The Commission reasoned primarily that because, unlike a court, the Commission has before it all of the evidence, there is no reason to require shifting burdens of production. Thus, the use of a prima facie framework to weed out meritless cases is unnecessary because all of the evidence has already been presented. The Commission's reasoning is limited to cases before the state agency, not the courts. (123)

2. Mixed Motives

Often in discrimination cases, the employer will have mixed motives for its employment decision where both legitimate and illegitimate factors have contributed to the decision. For example, if a supervisor fires a construction worker because she is always late to work, and also because she is a woman, the decision to fire the woman had mixed motives.

In a mixed motives case, the plaintiff has the initial burden of proving that the discrimination was a "motivating factor in the adverse employment action, even though other factors may have been involved." (124) Once the plaintiff meets this initial burden, then the burden shifts to the employer and the employer must "demonstrate that it would have taken the same action even if it had not taken the prohibited characteristic into account." (125) Once the case goes to trial, the trier of fact will decide whether the employer's discriminatory intent caused the employment decision.

3. Same Actor Evidence

Where the same actor is responsible for both the hiring and firing of a plaintiff suing for discrimination, and both actions occurred within a short period of time, an inference arises that there was no discriminatory motive. (126) For example if Mr. Smith, a personnel director at an accounting firm, hires Ms. Jones, a female associate, and then fires her two months later, and Ms. Jones claims that she was discriminated against and fired because she is a woman, then the defense will try to use "same actor" evidence. The defense will argue that if Mr. Smith didn't want women in the workplace, he would not have hired a woman for the position in the first place.

However, same actor evidence does not carry with it any special weight or create any presumptions in favor of the employer. In _Harvey v. Sybase, Inc._ , (127) the California Court of Appeal for the First District said, "Evidence that the same actor conferred an employment benefit on an employee before discharging that employee is simply evidence and should be treated like any other piece of proof."

III. Discrimination Based on Sexual Orientation

Under FEHA, at Government Code, Section 12940 (a), discrimination on the basis of sexual orientation is prohibited in California. This means that it is unlawful for you to be harassed because of your homosexuality, heterosexuality, or bisexuality. It is also unlawful for you to be harassed at work because of your perceived sexual orientation or because of the sexual orientation of the people you affiliate with. (128)

Conversely, under Title VII and the EEOC, discrimination on the basis of sexual orientation is not prohibited, as sexual orientation has not been added to the federal list of suspect classes.

Under the California law, the Supreme Court of California has confirmed that employers may not discriminate against employees based on sexual orientation. (See the discussion of _Jones v. The Lodge at Torrey Pines Partnership_ , (129) in Chapter Five, Section IV (D).)

IV. Discrimination Based on Pregnancy or Potential

Pregnancy

Discrimination based on pregnancy, childbirth, or related medical conditions, is prohibited by both FEHA (130) and Title VII. (131)

FEHA, at California Government Code, Section 12945 (b) (2) requires that if your employer has a policy or practice that requires that temporarily disabled employees be transferred to less strenuous or hazardous positions while they are disabled, then the employer may not refuse to transfer you while you are pregnant, if you ask to be transferred according to this practice.

Also, according to guidelines published by the FEHA, it is unlawful for an employer to ask a prospective employee whether or not she is or intends to become pregnant.

So-called "maternal profiling" in which employers discriminate against women who have children, or women who will have children in the future, violates both FEHA and Title VII.

_Case in Point_ _: Discrimination Based on Potential for_

Future Pregnancy is Unlawful

It is unlawful to discriminate based on the potential for a woman to become pregnant. In _Auto Workers v. Johnson Controls_ , (132) a manufacturing company would not allow women to work certain jobs based on a "fetal protection policy" because if they became pregnant there could be harm to their fetus. The Supreme Court of the United States ruled that such a policy was illegal discrimination.

_Case in Point_ _: Termination For In Vitro Fertilization Sex Discrimination According To Seventh Circuit_

In the 2008 Seventh Circuit federal court case of _Hall v. Nalco Company_ , (133) the plaintiff alleged sex-discrimination based on her claim that she was terminated from her job for missing work for fertility treatments. The court found that although infertility affects both men and women, only women undergo in vitro fertilization, and that such fertility treatment is based on a woman's childbearing capacity. Therefore adverse employment actions based on a woman undergoing in vitro fertilization is unlawful under Title VII. This was a case of first impression at the federal appellate court level, and although California courts are not bound by this decision, federal and state courts in California may very well follow this case.

_Case in Point_ _: Facts Found to Constitute Pregnancy_

Discrimination

In _Carr v. Barnabey's Hotel Corp._ , (134) the plaintiff, Cathy, worked as senior food and beverage supervisor at a hotel. When Cathy was seven months pregnant she got a new supervisor, Defendant Whitty. On Whitty's third day of employment he told Cathy that "this was no place for a pregnant woman to be." Whitty also told other employees that pregnant women should not be working in the hotel or restaurant business and that "it didn't look good" to have a pregnant woman at the front desk, where Cathy worked, and made derogatory comments about women being strong-willed and outspoken. Whitty told Cathy that the employees were stupid and lazy due to her incompetence, made derogatory comments about Cathy to other employees, and interfered with her work. Whitty eventually fired Cathy. On the day she was fired, Whitty told her that "no woman talks to me this way" and that was why he was firing her. The court found that these facts were sufficient for a jury finding of discrimination.

V. Pregnancy Leave

There are three statutes which give women in California the right to a certain amount of pregnancy leave. These three bodies of law are the federal Family Medical Leave Act of 1993 (FMLA), (135) California Pregnancy Disability Leave (PDL), (136) and the California Family Rights Act (CFRA). (137) The size of your place of employment (i.e., number of employees) affects which laws apply to your employment.

California also offers Paid Family Leave insurance, which is unemployment compensation disability insurance provided by California's State Disability Insurance (SDI) program and funded by employee payroll deductions. Paid Family Leave benefits are available to workers who suffer a wage loss due to time taken off work to provide care for a seriously ill family member or to bond with a new child.

California workers may receive up to six weeks of partial pay Paid Family Leave benefits each year. Employees who pay into California's SDI program are eligible for Paid Family Leave benefits regardless of the size of their employer.

A. Family Medical Leave Act of 1993:

The Family Medical Leave Act (FMLA) allows for up to four months of leave from work, and it applies equally to men and women. There are four reasons that you may qualify for leave under the FMLA: (138)

(1) To care for a child born within the last year;

(2) To care for a child that has been adopted or placed in foster care with you during the past year;

(3) To care for a child, spouse, or parent with a serious health condition; or

(4) For a serious health condition that makes you unable to perform the functions of your position.

1. Eligibility

According to the FMLA, Title 1, Section 101, (139) in order to be an eligible employee, the employee must have been employed for at least 12 months by the employer, and must have worked at least 1,250 hours of service during the 12-month period. Also in order for the employee to be eligible for FMLA leave, the employer must have at least 50 employees within a 75-mile radius of the worksite of the employee requesting the leave.

2. Restoration of Position

The FMLA states that, in general, any eligible employee who takes FMLA leave, on return from such leave shall be entitled to

be restored by the employer to the position of employment held by the employee when the leave commenced; or... to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment...[and the taking of FMLA leave] shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced. (140)

However, there is an exemption concerning certain highly compensated employees. An employer may deny restoration if "such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;... the employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that such injury would occur; and... in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice." (141)

This exemption affects salaried eligible employees who are "among the highest paid 10 percent of the employees employed by the employer within 75 miles of the facility at which the employee is employed." (142)

B. California Pregnancy Disability Leave:

Women in California who are disabled by their pregnancy are entitled to up to four months of protected leave under California Pregnancy Disability Leave (PDL). This leave runs concurrently with FMLA. California Code of Regulations, Section 7291.7 (143) states:

All employers must provide a leave of up to four months, as needed, for the period(s) of time a woman is actually disabled by pregnancy even if an employer has a policy or practice which provides less than four months of leave for other similarly situated temporarily disabled employees....

If an employer has a more generous leave policy for other temporary disabilities than is required under Section 7291.7... the employer must provide such leave to employees temporarily disabled by pregnancy.

1. Eligibility

If your employer has a minimum of five employees, you are eligible for up to four months of job-protected leave for pregnancy-related disability. A "four month leave" means the number of days the employee would normally work within four months. There is no length of service requirement before an employee disabled by pregnancy is entitled to a pregnancy disability leave.

2. Disability Requirement

PDL is available only when a woman is actually disabled. This includes leave needed for prenatal care, severe morning sickness, doctor-ordered bed rest, childbirth, recovery from childbirth, or any related medical condition. According to California Code of Regulations, Section 7291.2, a woman is "disabled by pregnancy" if:

in the opinion of her health care provider, she is unable because of pregnancy to work at all or is unable to perform any one or more of the essential functions of her job or to perform these functions without undue risk to herself, the successful completion of her pregnancy, or to other persons.... A woman is also considered to be "disabled by pregnancy" if she is suffering from severe "morning sickness" or needs to take time off for prenatal care.

The employer is entitled to request medical certification from the employee requesting leave if the employer requires certification of other similarly suited employees. According to California Code of Regulations, Section 7291.2 (144) "certification" means:

a written communication from the health care provider of the employee that either the employee is disabled due to pregnancy or that it is medically advisable for the employee to be transferred to a less strenuous or hazardous position or to less strenuous or hazardous duties.

3. Job Transfer

Under PDL, and according to California Code of Regulations, Section 7291.6, (145) it is unlawful for an employer to deny the request of an employee affected by pregnancy to transfer provided that:

(1) The employee's request is based on the certification of her health care provider that a transfer is medically advisable; and

(2) Such transfer can be reasonably accommodated by the employer. No employer is required to create additional employment that the employer would not otherwise have created, discharge another employee, violate the terms of a collective bargaining agreement, transfer another employee with more seniority, or promote or transfer any employee who is not qualified to perform a new job.

The burden is on the employer to prove by a preponderance of the evidence that such a transfer cannot be reasonably accommodated.

Under PDL, if it is medically advisable for an employee to take intermittent leave or leave on a reduced work schedule, the employer may require the employee to transfer temporarily to an available alternate position. However, this alternate position must have the same pay and benefits, the employee must be qualified for the alternate position, and it must better accommodate recurring periods of leave than the employee's regular position.

4. Reinstatement

When the employee's health care provider certifies that the transfer or leave is no longer needed, the employer must reinstate the employee to her same or comparable position.

5. Denial of Leave

It is an unlawful employment practice for an employer to refuse to grant a pregnancy disability leave to an eligible employee. In order to prove that an employer unlawfully denied this leave, California Code of Regulations, Section 7291.8 (146) states the burden of proof as follows:

Denial of a request for pregnancy disability leave is established if the Department or the employee proves, by a preponderance of the evidence, the following elements.

(1) The employer was an employer under the FEHA with five or more employees.

(2) The employee was disabled by pregnancy.

(3) The request was reasonable.

(4) The employer denied the request for pregnancy disability leave....

A request to take a pregnancy disability leave is "reasonable" if it complies with any applicable notice requirements, (147) and if it is accompanied, where required, by a certification. (148)

C. California Family Rights Act:

The California Family Rights Act (CFRA) offers protected leave to care for a newly born or adopted child.

1. Eligibility

The California Supreme Court in _Loniki v. Sutter Health Central_ , summarized the CFRA as follows:

The CFRA applies to companies with 50 or more employees; it allows an employee up to 12 weeks of unpaid "family care and medical leave" if the employee has worked for the company for more than a year, and has at least 1,250 hours of service during the previous year. (149) Grounds for the leave are family needs such as birth or adoption of a child, serious illness of a family member, or...when "an employee's own serious health condition... makes the employee unable to perform functions of the position of that employee."

2. Relationship Between CFRA and PDL

The right to take pregnancy leave under California Pregnancy Leave, discussed above, is "separate and distinct from the right to take a CFRA leave." (150) CFRA leave begins after California Pregnancy Disability Leave ends. According to California Code of Regulations, Section 7291.13: (151)

At the end of the employee's period(s) of pregnancy disability, or at the end of four months pregnancy disability leave, whichever occurs first, a CFRA-eligible employee may request to take CFRA leave of up to 12 workweeks for reason of the birth of her child, if the child has been born by this date. There is no requirement that either the employee or child have a serious health condition in order for the employee to take CFRA leave. There is also no requirement that the employee no longer be disabled by her pregnancy before taking CFRA leave for reason of the birth of her child.

Therefore, the maximum possible combined statutory leave entitlement under all three applicable bodies of law is four months plus 12 workweeks. In order to reach this maximum entitlement, the employee must be disabled by pregnancy for four months and then request and be eligible for a 12 week CFRA leave for reason of the birth of the child.

_Case in Point_ _: Leave Policy May Differentiate Between Work-Related and Non-Work-Related Disabilities, Such as Pregnancy_

A California Court of Appeal, in _Spaziano v. Lucky Stores, Inc._ , (152) ruled that a collective bargaining agreement that gives a one-year leave of absence to employees who are disabled by occupational injury, and a six-month leave of absence to employees who are disabled by non-occupational injury _including pregnancy_ , does not discriminate against pregnant employees and does not violate FEHA.

The _Spaziano_ court explained their rationale as follows:

The FEHA policy towards reinstating employees after a pregnancy disability leave is summarized as follows: "If an employee disabled by pregnancy has taken a pregnancy disability leave for longer than four months, an employer must treat the employee the same regarding reinstatement rights as it treats any other similarly situated employee who has taken a similar length of disability leave. For example, if the employer has a policy which allows reinstatement to other temporarily disabled employees who are disabled for six months, the employer must also allow reinstatement to a woman disabled by pregnancy for six months." (153)...

Lucky's policy... does not run afoul of the above regulation or FEHA. Lucky does not provide workers who are disabled due solely to their pregnancy with less leave than workers who are disabled due to other non-industrial causes. Though it does not give them as much disability leave as employees who are injured on the job, this distinction is not based on sex or pregnancy. Spaziano was limited to six months of leave not because she was pregnant, but because her disability was not work related.

The common goal of Title VII and FEHA is to end discrimination against pregnant workers.... A leave policy such as Lucky's, which differentiates between work-related disabilities and those which occur off the job, does not discriminate against pregnant employees. Rather, it establishes a neutral rule that incidentally affects pregnant employees as part of a larger group. (154)

VI. Conclusion

Gender discrimination often takes place in the form of denying leave to workers who are entitled to it. Pregnant women are entitled to leave under different statutes and an employer who violates the statutory rights of employees to take leave from work for legitimate reasons under the statute is in violation of the law and liable for damages.

The legal term for unlawful gender discrimination based on stereotypes is called disparate treatment. When an employer discriminates against an employee based on the employee's gender, such as giving to one sex preference in hiring, salary advancements, or promotions, that is discrimination based on disparate treatment.

Chapter Four. Steps the Victim Can Take to

Contend With Sexual Harassment

I. Introduction

This chapter reviews both the legal and mental health care steps that a victim of sexual harassment should consider. The steps of telling the harasser to stop and reporting the incident to management are connected to the issue of proving that the harassing conduct is unwanted. The chapter concludes with Cases In Point that explain that even if a victim's participation in a sexual episode is voluntary that does not necessarily mean the participation was welcome, as opposed to unwanted. Courts have considered a victim's behavior and even the victim's dress as relevant factors in the determination of whether the harasser's conduct was welcome or unwelcome.

The primary legal steps to contend with harassment in the workplace include telling the harasser to stop, complaining to a supervisor or the Human Resources Department, consulting an attorney, filing a complaint with the EEOC and/or the DFEH, and ultimately filing a lawsuit for sexual harassment. Other steps a victim can take even before consulting an attorney are to find personal support, to get professional health care counseling to help to cope with the psychological impact of the harassment, and to document the incidents of harassment.

**II.** **Know Your Rights**

Using tools such as literature on sexual harassment and the advice of an attorney to understand what conduct constitutes sexual harassment is a powerful step in confirming a victim's rights and can build confidence and assist in moving forward with the next steps in stopping the harassment.

III. Tell the Harasser to Stop

A victim of sexual harassment should clearly tell the harasser that his or her conduct is inappropriate and that they want the harassment to stop. If this does not work, or if the harassment victim feels too scared to verbally confront the harasser, the victim can write a letter telling the harasser to stop his or her misconduct. A victim can also have a third party tell the harasser to stop behaving inappropriately.

IV. Report the Incident to a Supervisor or to the Human Resources Department

A victim of sexual harassment should let a supervisor and/or the Human Resources Department know what is happening. The victim can tell the Human Resources Department what steps have already been taken to stop the harassment, and what they would like to see happen next.

A. Is a Sexual Harassment Victim Required to Make a

Complaint to the Employer?

Although reporting the harassment is not a strict requirement for the victim in order to prevail in a lawsuit against the employer, a report puts the employer on notice to take steps to stop the harassment. Additionally, there are two key legal reasons why it is a good idea for victims to report sexual harassment. First, reporting the harassment to the employer can help to stop the defendant from lowering the victim's damages at trial through the use of an avoidable consequences affirmative defense. When a victim does not report harassment in the workplace to the employer, the employer can bring the affirmative defense that the employer is not liable for damages that could have been avoided by the employer, if the victim had made a timely report of the harassment. (See detailed discussion on affirmative defenses in Section V of Chapter Five.)

Second, reporting the harassment can help to prove to the jury that the conduct of the harasser was unwanted and unwelcomed by the victim and that the harasser was on notice that the offensive behavior was unwanted.

V. Coping with the Stressful Effects of Sexual Harassment

There is no easy answer to how a victim of sexual harassment can best cope with the stressful effects of sexual harassment. Some victims will be hysterical, while others will go through denial and remain outwardly calm. Some struggle with asking themselves why they have been harassed and wonder if they did something to give the harasser the wrong impression. This may cause the victim to feel guilt, shame, or embarrassment. The victim may feel like the harassment is his or her fault, and this guilt and shame can make it even more difficult for a victim of sexual harassment to seek help or to report the harassment.

Victims of sexual harassment may be affected by the harassment in a number of debilitating ways. Different victims will react differently to sexual harassment. Some common effects of sexual harassment on victims include feelings of confusion, embarrassment, denial, fear, and numbness. The victim may suffer from depression, anxiety, traumatic stress, sleeplessness or nightmares, decreased ability to concentrate, headaches, fatigue, stomach problems, anger, withdrawal and isolation, or problems with intimacy.

At work, the victim may experience decreased work performance, increased absenteeism, defamation of character and reputation, and loss of recommendations as a result of the harassment.

These complex and troubling effects on victims of sexual harassment can be extremely difficult to deal with. Acknowledging emotional hardships can be an effective first step for victims to gradually heal. Victims will need time and support to recover from their emotional injuries.

It can also help the victim to confide in a trusted friend or family member. Confiding in friends and/or family members can serve both to help emotionally by lifting a victim's spirits and also to help prove damages in litigation for the sexual harassment. Sometimes friends and family members act as witnesses at trial to testify about the harm the harassment caused the victim.

The California Supreme Court (155) has noted that stressful effects of sexual harassment may hinder a victim from reporting the harassment, and stated that the sexual harassment victim's actions need only be "reasonable." The California Supreme Court explained:

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 employee may reasonably fear reprisal from 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. (156)

VI. Seek Professional Medical Help

Victims of sexual harassment should seek professional help from a psychiatrist or psychologist to cope with their problems and to deal with managing the emotional distress they face as a result of the sexual harassment.

If a victim of sexual harassment does seek help from a mental health care practitioner, the treating mental health care practitioner may later testify as a witness about the effects of the sexual harassment on the victim. While seeking the counsel of any mental health care practitioner can be helpful to a victim of sexual harassment, a psychiatrist is an actual doctor that has been through medical school, and therefore has more credentials as a witness in the victim's sexual harassment lawsuit. A victim should consider seeking professional help from a psychiatrist or psychologist to get treatment for the debilitating and stressful physical and emotional effects of sexual harassment as soon as possible after the harassment.

The mental health care records of the victim may be discoverable by the attorney for the employer in a sexual harassment lawsuit. (See the discussion of emotional distress and discovery in Section III (A) of Chapter Seven.)

VII. Document the Harassment

As the harassment occurs, it can be helpful in later litigation to have a written account of each incident of harassment that took place, including what was said or done, the date, time, and place of the incident, who else was there, as well as what impact the incident had on the victim's emotions, health, personal relationships, and work duties.

As part of documenting the harassment, make sure to save any memos, letters or emails that are related to the harassment, but be careful not to violate the employer's confidentiality and proprietary information guidelines.

Also make sure to document all negative actions, and not just the harassing conduct. For example, keep track of any performance reviews, demotions, position title changes, or similar events.

VIII. Proving the Harassing Conduct was Unwanted

In order to prove a case of sexual harassment, whether quid pro quo harassment or hostile work environment harassment, the plaintiff must show that the harasser's conduct was unwanted. (157)

In addition to overcoming the defendant's affirmative defense for avoidable consequences, reporting harassing conduct to the employer will also help to prove that the actions taken by the harasser were indeed unwanted and unwelcome.

_Case in Point_ _: Even If Victim's Conduct was Voluntary, This Does Not Mean the Advances Were Welcome_

In _Meritor Savings Bank, FSB v. Vinson_ , (158) the United States Supreme Court examined whether voluntary sexual intercourse could be considered an "unwelcome" sexual advance, and found that it could. The Court explained:

The fact that sex-related conduct was "voluntary," in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were "unwelcome."... While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the "voluntariness" of respondent's participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.

_Case in Point_ _: Victim's Dress and Behavior Relevant to Determination of Whether Advances Were Unwanted_

The admissibility a victim's dress and speech in a sexual harassment case was also considered in _Meritor Savings Bank, FSB v. Vinson_. (159) In _Vinson_ , the United States Supreme Court determined that a victim's dress and behavior are relevant to the determination of whether the harasser's conduct was unwelcome, but noted that it is up to the trial court to determine whether evidence is admissible on a case-by-case basis. The Court explained:

While "voluntariness" in the sense of consent is not a defense to such a sexual harassment claim, it does not follow that a complainant's sexually provocative speech or dress is irrelevant as a matter of law in determining whether he or she found particular sexual advances unwelcome. To the contrary, such evidence is obviously relevant. The EEOC Guidelines emphasize that the trier of fact must determine the existence of sexual harassment in light of "the record as a whole" and "the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred."...

Respondent's claim that any marginal relevance of the evidence in question was outweighed by the potential for unfair prejudice is the sort of argument properly addressed to the District Court.... While the District Court must carefully weigh the applicable considerations in deciding whether to admit evidence of this kind, there is no per se rule against its admissibility." (160)

IX. Conclusion

As you can see, it is important, but not necessarily essential, that the victim tell the harasser to stop and report the incident to a supervisor or to the Human Resources Department. Filing an administrative complaint with the California DFEH or the federal EEOC is a legally necessary step before one is entitled to bring a lawsuit for sexual harassment in court.

An often overlooked step a victim should take is to find personal support and to seek out the appropriate professional mental health care counseling, not only to treat the typical depression and shame issues associated with sexual harassment, but also to document the victim's trauma as a result of the harassment.

Consent to sexual advances or sexual conduct is not the equivalent of welcoming the conduct. A victim can consent to sexual conduct, even when the conduct is "unwelcome" under the sexual harassment statutes. Voluntary adult sexual conduct is not the equivalent of "welcome" sexual conduct under Title VII and FEHA. For example, in the context of quid pro quo sexual harassment, where a supervisor typically demands sexual favors in exchange for workplace advancement or under the threat of adverse employment consequences, if the victim consents to a sexual act under pressure of employment consequences, the sexual act is not necessarily "welcome" under Title VII and FEHA. Although consent to sex or sexual behavior may still constitute unwelcome sexual harassment, the victim faces practical problems of proof to convince the trier of fact that the sexual behavior was unwanted.

Chapter Five. Employer and Individual

Responsibilities

I. Introduction

The federal Title VII applies to employers with at least fifteen employees, but California FEHA requires just five employees for the employer to be liable for discrimination and only one employee for an employer to be liable for sexual harassment.

This chapter discusses in detail the potential liability for (1) employers, (2) supervisors, (3) non-supervisory personnel and (4) non-employees for sexual harassment in the workplace. Under the federal Title VII, only the employer is liable for sexual harassment in the workplace and the employer's responsibility is automatic under vicarious liability principles if the harassment is from a supervisor. They are liable on another negligence theory if the harassment is from other employees in the workplace.

Under California FEHA, an employer is automatically (strictly) liable for harassment by supervisors and is liable on a negligence theory for non-supervisory personnel and non-employees.

Under California FEHA, but not under federal Title VII, supervisors and non-supervisory employees can be held individually responsible for sexual harassment.

Non-employees are not liable under the sexual harassment statutes, but they may be held liable for common law torts committed against the victim, such as assault and battery.

This chapter addresses the somewhat expansive definition of a supervisor as applied in sexual harassment law and addresses liability for harassment that takes place outside of the workplace, but is between employees of the same company.

We also make a distinction between individual liability for sexual harassment as opposed to individual liability for retaliation or discrimination under the California FEHA. FEHA holds only the employer responsible for retaliation and discrimination.

The chapter addresses affirmative defenses under both California law and federal law that limits liability for damages under the circumstances where a victim has delayed reporting the harassment to the employer. An employer must show that if the victim had made a timely report of the sexual harassment it is likely the employer would have stopped the harassment and thereby mitigates the damages that the victim suffered. The affirmative defenses provide a mechanism for the employer to avoid part of the liability for damages if the victim delays in reporting the harassment.

The chapter also sets forth the criteria for a victim to obtain an award for punitive damages, which are damages that are designed to punish the defendant and to make an example of the defendant to discourage others from engaging in similar misconduct.

II. Number of Employees Required for Employer

Responsibility

A. California Law: One Employee Required for Sexual

Harassment, But Five for Discrimination

In California, according to FEHA, five employees are necessary to sue an employer for discrimination, while only one employee is necessary for a viable harassment lawsuit against an employer.

In _Janken v. GM Hughes Electronics_ , (161) the court explained:

A person who regularly employs less than five other persons is not an "employer" for the purposes of FEHA prohibitions on discrimination, and hence cannot be sued for discrimination.... For purposes of harassment, however, "employer" is specially defined in Section 12940... to include any person regularly employing _one_ or more person... and makes clear that this special definition of "employer" as someone employing only _one_ other person applies only to harassment claims, and that discrimination claims continue to be covered by the "five or more" definition in Section 12926, Subdivision (d). The Legislature thus made a clear distinction in California in the treatment of harassment claims versus the treatment of discrimination claims: small employers can be sued for harassment, but they cannot be sued for discrimination.

B. Federal Law: Fifteen Employees Required

In order to bring any Title VII claim against your employer, your employer must employ at least 15 employees. The federal statute, Title VII, (162) defines an "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year."

III. Preventive Measures Required by Employers

The California FEHA states that employers must take all reasonable steps to prevent unlawful harassment. (163) FEHA also requires that employers provide information to their employees concerning unlawful sexual harassment. (164) In fact, employers with at least 50 employees are required to provide a minimum of two hours of training and education concerning unlawful sexual harassment to all supervisory employees in California every two years. (165)

However, you cannot sue an employer for failing to take reasonable steps to prevent harassment unless you have _actually_ suffered harassment. (166)

While there is no parallel federal requirement for mandatory sexual harassment training, EEOC guidelines (167) state:

Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under title VII, and developing methods to sensitize all concerned.

California and federal law are similar in regard to what an employer must do in response to a report of sexual harassment. In 1991, the Ninth Circuit Court, in the case of _Ellison v. Brady_ , (168) found that once an employer discovers that their employee is participating in sexual harassment, Title VII obligates that employer to take remedial action that is reasonably calculated to end the harassment by means of imposing adequate consequences to make certain that the workplace will be free from sexual harassment.

The next year, in _Intlekofer v. Turnage_ , (169) the Ninth Circuit Court further clarified that once an employer knows of sexual harassment, their remedies must be disciplinary in nature, in addition to being reasonably calculated to end the harassment. While no specific remedies or penalties are required, the important thing is that the remedies are appropriate to the facts of the particular situation.

If the remedies put in place by the employer do not result in an end to the harassment, the employer needs to institute harsher disciplinary actions until the harassment stops. (170)

In _Bradley v. Department of Corrections & Rehabilitation_, (171) the harasser stalked and sexually threatened the victim both at the workplace and off-duty at the victim's apartment. The employer correctional facility took action by initiating an investigation process. The California Court of Appeal for the Fifth District found that there was "ample evidence" to support the jury's finding that the correctional facility failed to take immediate and appropriate action as required by law. The Court said: "While we recognize that things move slowly in state government, the lack of action in this case is startling. Numerous people heard Bradley's complaints yet did nothing to protect her or to stop the harassment." (172) The _Bradley_ court found that the correctional facility could not rest on its complex investigation process because the law requires "remedial action designed to _end_ the harassment." (173) (See Section IV (C) of this chapter on liability for off-duty harassment for a further discussion of _Bradley v. Department of Corrections & Rehabilitation_.)

IV. Who is Liable for Sexual Harassment?

Under federal law (Title VII) only employers can be liable for damages for sexual harassment, but under California law (FEHA), both the employer and the individual harasser can be liable for damages.

In this section, we explain who can be sued for sexual harassment and who will be liable to pay damages to a victim of sexual harassment depending on the facts of the victim's case. Who you can sue will depend on whether you bring a federal or state claim, and will also depend on whether the harasser was a supervisor, a non-supervisory employee, or a non-employee.

A. Summary of Liability

1. Employer Liability

California law and federal law differ on who is liable for sexual harassment. Under the California law, FEHA, (174) the employer is liable for sexual harassment committed by a supervisor, whether or not the employer knew about the harassment. In _State Department of Health Services v. Superior Court_ , (175) the California Supreme Court concluded that "under 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. (176) If the employer did not know about the harassment in time to take immediate and appropriate corrective action, the employer has a defense called the avoidable consequences defense, which reduces the damages recoverable by the victim. Damages can be reduced only if, taking account of the employer's antiharassment policies and procedures and its past record of acting on harassment complaints, the employee acted unreasonably in not sooner reporting the harassment to the employer. (177) (See the discussion of affirmative defenses in Section V of this chapter for a further explanation of how employers may limit their liability for damages when a victim delays making a report of the harassment to the employer.)

Under FEHA, the employer is liable for harassment committed by a non-supervisory employee if "the entity, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action." (178) This is a negligence standard. Because the employer must be on notice to be found liable, it will help a sexual harassment victim's case against their employer if the victim has complained to the Human Resources Department or to a supervisor.

Under the federal law in Title VII, the employer is similarly liable for harassment by supervisors. The United States Supreme Court said, "An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." (179)

The employer has a defense similar to the California defense of avoidable consequences. The federal defense is called the _Ellerth/Faragher_ defense and it is only available where no tangible employment action has been taken against the victim employee. If the employer proves the elements of the defense, the employer is not liable for the damages that the employer could have avoided if the victim had made a timely report of the harassment.

Under federal law, (180) the employer is also liable on a negligence standard for harassment committed by a non-supervisory employee, under the same standard used under California law. (181) So under both federal law and California law, an employer is liable for harassment by a non-supervisory employee or by a non-employee if the employer knows, or should have known, about the harassment, and fails to take immediate and appropriate corrective action.

Also an employer can be found liable under both federal and California law for harassment by a non-employee such as a vendor or customer, on a negligence standard. FEHA (182) and EEOC guidelines included in the Code of Federal Regulations (183) contain nearly identical language concerning employer liability for non-employees. FEHA at California Government Code, Section 12940 (j) (1), states:

An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, or persons providing services pursuant to a contract in the workplace, 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. (184)

However, for harassment by non-employees, the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of those non-employees will be considered. (185)

Cases of harassment by non-employees have arisen as a result of harassment by vendors, prison inmates, (186) couriers, repair service workers, patients, customers, (187) and clients.

CASE IN POINT: Employer Liable for Harassment of Prison Employee by Prison Inmates

In _Freitag v. Ayers_ , (188) the federal Ninth Circuit Court found that the California Department of Corrections and Rehabilitation could be held liable for hostile work environment sexual harassment for failing to take steps to attempt to correct the sexual harassment a female prison guard suffered from male prison inmates. The Ninth Circuit Court said:

In the Ninth Circuit, employers are liable for harassing conduct by nonemployees "where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct."... This theory of liability is not grounded in the harassing act itself,–i.e., inmate misconduct–but rather in the employer's "negligence and ratification" of the harassment through its failure to take appropriate and reasonable responsive action. (189)

This decision is based on the failure of the employer, in this case the correctional facility, to take action in an attempt to prevent the repeated harassment. The Ninth Circuit may not have found the correctional facility could be liable if the facility had taken reasonable attempts to prevent the harassment, even if reasonable efforts had failed and harassment by inmates continued.

There is an instructional comparison between the _Freitag_ case and the _Lyle_ (190) case referred to in Chapter Two, which we also refer to as the _Friends_ case because the plaintiff was a former employee of the production team for the TV sitcom, _Friends_. In the _Freitag_ case, a female prison guard made repeated complaints to management about the sexual harassment she was suffering as a result of the vulgar behavior of certain inmates. In particular, Freitag complained about exhibitionist masturbation by inmates directed to female prison guards. In the _Friends_ case, the female employee also complained about such things as feigned masturbation by some of the male writers.

In _Friends_ the California Supreme Court found that the employer could not be held liable for the sexually coarse and vulgar language by its male writers, because the language was not aimed at the plaintiff or other women in the workplace and because the _Friends_ production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes. (191) The California Supreme Court noted that when the plaintiff in the _Friends_ case was hired, she had been forewarned that the show dealt with sexual matters and that, as an assistant to the comedy writers, she would be listening to and transcribing sexual jokes and discussions about sex. (192)

In the _Freitag_ case, the court acknowledged that female prison guards who took jobs at correctional facilities for men knew they were entering an inherently hostile work environment and were subjecting themselves to inappropriate and socially deviant behavior by prisoners. One distinguishing characteristic between the _Friends_ case and _Freitag_ , is that in _Freitag_ the sexual harassment was directed to the female employee. Another distinction is that the severity and threatening nature of the harassment was much greater in the _Freitag_ case. Nonetheless the main distinction between the _Friends_ case and _Freitag_ is that in _Freitag_ the female prison guard made repeated complaints to her employer about the harassment and her employer did nothing to help her or to stop the harassment. The correctional facility refused to punish the prison inmates who were harassing her.

The _Freitag_ case should not be read to mean that all prison employees can now successfully sue their employers for harassment by prison inmates, but instead should stand for the proposition that an employer's "negligence and ratification" of sexual harassment through failure to take appropriate corrective actions will give rise to liability.

2. Individual Liability

California law and federal law differ on individual liability for sexual harassment.

Under federal law, there is no individual liability for any claims under Title VII. Therefore, only the employer is liable under federal law. In _Miller v. Maxwell's International_ , (193) the Ninth Circuit Court of Appeals confirmed that supervisors and employees are not personally liable for violations of Title VII.

However, individual harassers can be found personally liable for any torts committed against the victim, including but not limited to infliction of emotional distress, defamation, invasion of privacy, assault and/or battery. (See further discussion in Chapter Seven on infliction of emotional distress and other torts.)

Under California law, both supervisory and non-supervisory employees are individually liable for sexual harassment. FEHA specifically states that "any employee of an entity subject to FEHA is personally liable for their own unlawful sexual harassment." (194) The risk in suing the offending supervisor or coworker individually for sexual harassment is that the harasser may not be financially able to pay damages. It is typical to sue both the employer and the individual harasser if the facts of your case allow it. Suing both makes it is easier to collect from whichever party has insurance or the requisite funds to pay a settlement or judgment.

Supervisors are also individually liable for aiding and abetting (195) sexual harassment of an employee; a supervisor may aid and abet sexual harassment by becoming aware of the harassment and failing to take action to stop the harassment, as stated in _Matthews v. Superior Court_. (196) In light of the California Supreme Court case of _Jones v. The Lodge at Torrey Pines Partnership_ , (197) which held that "person" in the FEHA provision prohibiting retaliation (198) includes employers, but not supervisors or other employees, it is uncertain whether or not non-supervisory employees may also be individually liable for aiding and abetting sexual harassment. Furthermore, liability for non-supervisory employees for aiding and abetting is uncertain because generally only supervisors are responsible for taking steps to avoid and to stop sexual harassment.

FEHA does not provide for individual liability for non-employees who sexually harass someone at another's workplace. California law, FEHA at Government Code Section 12940 (j) (3), allows only for "An _employee_ of an entity subject to this subdivision" to be personally liable for harassment. However, individual harassers risk liability for other common law tort claims, such as claims for assault, battery, invasion of privacy, defamation, intentional infliction of emotional distress and negligent infliction of emotional distress.

B. What is a "Supervisor?"

While Title VII does not explicitly define the term "supervisor," the EEOC (199) has defined a "supervisor" for the purposes of a Title VII claim as someone with authority to recommend "tangible employment actions" or someone who has the authority to direct the employee's daily work activities.

A "tangible employment action" is a substantial modification to one's employment status, such as hiring, firing, promotion, demotion, reassignment to an unwanted position, or a significant change in pay, benefits, or work assignment.

In California sexual harassment law, the word "supervisor" has a specific legal meaning. According to FEHA at California Government Code, Section 12926 (r), (200) "supervisor" means:

any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

In this specific legal context, someone does not need to be wholly responsible for your performance or work product to be considered a supervisor, as explained in the following Case In Point.

CASE IN POINT: Person Need Not Be Wholly Responsible for Employee's Work Product to be Considered Supervisor Under FEHA

In _Chapman v. Enos_ , (201) the plaintiff, April Chapman, worked for the major fraud unit for Sonoma County and sued for sexual harassment by Mr. Enos, the deputy district attorney assigned to the unit. On the issue of whether Enos was April's supervisor, the Court of Appeal for the First Appellate District of California found that someone does not need to be wholly responsible for an employee's performance or work product to be considered a supervisor. The Court explained:

[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. (202)

C. Liability for Off-Duty Harassment

Employers are not liable for off-duty harassment by the victim's supervisor if there is not an adequate connection between the supervisor's harassing behavior and his or her employment. (203) The California Supreme Court, in _State Department of Health Services v. Superior Court_ , (204) explained that strict liability analysis of an employer's liability for harassment on the part of a supervisor "... assumes the supervisor is acting in the capacity of supervisor when the harassment occurs. The employer is not strictly liable for a supervisor's acts of harassment resulting from a completely private relationship unconnected with the employment and not occurring at the workplace or during normal working hours."

CASE IN POINT: Employer Avoids Strict Liability When Harassment Results From Private Relationship Unconnected with Employment

In _Myers v. Trendwest Resorts, Inc._ , (205) the plaintiff sued for sexual harassment including unwanted groping. The Court of Appeal for the Third Appellate District of California stated:

in order for the employer to avoid strict liability for the supervisor's actions under 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....

Here, the harassment did not result from a completely private relationship unconnected with the employment.

In this case, there was no personal dating relationship between plaintiff and the harasser at the time of the most significant incidents of harassment, which occurred during work-related driving excursions. As a result, the _Myers_ court found that the employer was strictly liable in this case.

While _Myers_ involved sexual harassment committed by a supervisor, it would seem only logical that employers are similarly not liable for off-duty harassment by a non-supervisory employee if there is not an adequate connection between the harassment and the employment.

Certainly, there is no employer liability for sexual harassment committed against an employee by a non-employee that takes place off duty and without an adequate connection to the employment.

In the following Case In Point, a non-supervisory employee sexually harassed a coworker off-duty, making sexual threats and stalking her, but also participated in less severe harassment of the victim at the workplace. In this situation, where the harassment was extremely threatening, the victim had made numerous complaints to the employer, and the employer had initiated an investigation based on the complaint but had not taken steps to stop the harassment or protect the victim, the court found that there was ample evidence to support the jury's finding that the employer was liable for failing to take immediate and appropriate action.

CASE IN POINT: Employer Must Take Immediate and Appropriate Corrective Action When Employee Suffers Off-Duty Stalking Plus Less Severe On-Duty Harassment

In _Bradley v. Department of Corrections & Rehabilitation_, (206) the plaintiff, Sallie Mae Bradley, was a female social worker employed at the California Department of Corrections and Rehabilitation. The harasser, Omar Shakir, was a non-supervisory employee working as the prison's Muslim chaplain.

Shakir stalked Sallie Mae when they were off-duty, going to her apartment almost nightly, chanting and pounding on her door and making threatening sexual propositions. Shakir's off-duty stalking of Sallie Mae was accompanied by harassment at work. Sallie Mae made multiple complaints to various supervisors at the prison, and an investigation was initiated by the prison, but no action was taken to make sure that Sallie Mae was safe or to stop Shakir from harassing her at work.

The defendant correctional facility urged the _Bradley_ court to "dissect the parties overall behavior" and argued that "because the more serious behavior happened off premises, it was not required to address what it classified as insignificant behavior onsite." (207) The _Bradley_ court disagreed with the defendant's argument. The _Bradley_ court stated, "Shakir was engaged in classic stalking behavior, terrorizing, intimidating, and humiliating Bradley and taking full advantage of his free access to her at work to accomplish his inappropriate goals." (208)

Not only did the _Bradley_ court find evidence to show that the prison should have taken steps to end the harassment that took place at the workplace, but also that the prison should have helped the victim to serve her restraining order on the harasser to put an end to stalking outside of work.

This case may have resulted differently if the harassment had not been so threatening and extreme.

D. No Individual Liability for Retaliation or Discrimination

It is important to note that while the law in California allows for individual liability for harassment, California does not allow for individual liability for discrimination (209) or for retaliation, (210) with the possible exception that a harasser could be liable for retaliation that follows or is a part of harassing conduct; the law in this regard is currently unsettled.

CASE IN POINT: Generally, No Individual Liability

for Retaliation

In 2008, the Supreme Court of California, in _Jones v. The Lodge at Torrey Pines Partnership_ , (211) found that individuals may not be held personally liable for retaliation. In that case, the plaintiff, Jones, was found to have been discriminated against on the basis of his sexual orientation and also that he was retaliated against. The California Supreme Court found that while Jones could recover damages for his retaliation action against his employer, he could not recover damages against the individual supervisor who retaliated against him.

However, the Court left open the question about whether there are any instances in which the plaintiff may in fact recover from an individual sued for retaliation. The Court states: "We express no opinion on whether an individual who is personally liable for _harassment_ might also be personally liable for retaliating against someone who opposes or reports _that same harassment_." (212) The Supreme Court left open the possibility that an individual harasser may be personally liable for retaliation. Because a supervisor or coworker who sexually harasses an employee is personally liable for sexual harassment, the Supreme Court may in the future hold that the personal liability of a harasser also extends to subsequent retaliatory actions, either under the concept of the retaliation being a continuing part of the harassment or under the concept that the legislative intent for harassers to be personally liable extends into the section of the FEHA that prohibits retaliation.

**V.** **Affirmative Defenses Limiting Liability for Damages**

When the Victim Delays Reporting the Harassment

Defendants in most cases, including harassment cases, generally deny the allegations of the plaintiff in the defendant's formal answer to the plaintiff's complaint. As an additional part to an answer to a complaint, defendants are required to specify their legal defenses to the plaintiff's complaint; these are called affirmative defenses, and they must be specifically raised by the defendant. One example of an affirmative defense is that the plaintiff's complaint is barred by the applicable statute of limitations.

Under California law, there is an affirmative defense to limit damages in harassment actions called the avoidable consequences defense, which an employer may raise when a sexual harassment victim delays reporting the harassment to the employer.

A. California Avoidable Consequences Defense

California courts have recognized that a defending employer has the ability to plead an affirmative defense in sexual harassment and discrimination cases under the Avoidable Consequences Doctrine. Under this doctrine, if a victim of sexual harassment delays or fails to complain to the employer or fails to make timely use of the employer's sexual harassment policy, the defendant employer can bring the affirmative defense that they are not liable for damages that could have been avoided by the victim, if the victim had made a timely report of the harassment.

The Judicial Council of California Civil Jury Instructions (CACI) are the official civil jury instructions and verdict forms approved by the Judicial Council of California. These jury instructions state what will need to be proven at trial to succeed on a cause of action or on an affirmative defense in California courts.

CACI 2526, (213) is the California jury instruction which governs the affirmative defense for Avoidable Consequences. CACI 2526 states the three elements that must be proven to limit damages with an avoidable consequences affirmative defense:

1. That defendant took reasonable steps to prevent and correct workplace sexual harassment;

2. That plaintiff unreasonably failed to use defendant's harassment complaint procedures or the preventative and corrective measures that defendant provided; and

3. That the reasonable use of defendant's procedures would have prevented some or all of plaintiff's harm.

CASE IN POINT: California Affirmative Defense for

Harassment Cases

In _State Department of Health Services v. Superior Court_ ( _McGinnis_ ), (214) the plaintiff, Theresa McGinnis, waited 20 months before reporting the sexual harassment she faced to her employer. Once the employer received her complaint, they investigated the complaint and took disciplinary action against the harasser. At the trial for hostile work environment sexual harassment, the employer brought an affirmative defense, arguing that because McGinnis failed to make timely use of the employer's sexual harassment procedure, they were not liable for damages. The Supreme Court of California ruled that although employers are strictly liable for harassment by supervisors, employers can limit their liability under the common law affirmative defense of avoidable consequences. The Supreme Court of California explains:

in a FEHA action against an employer for hostile work environment 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.

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.

The California Supreme Court notes that the avoidable consequences defense only allows the limitation of damages, and stresses the fact that employers are still strictly liable for sexual harassment committed by supervisors. The Court states:

We emphasize that the defense attacks 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 the 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. (215)

The sexual harassment victim's actions need only be "reasonable," and the California Supreme Court notes:

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 from 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. The employee's conduct is judged against a standard of reasonableness, and this standard "is not as high as the standard required in other areas of law." (216)

Even though, technically, reporting harassment to a supervisor is good enough under FEHA to give the employer notice of the harassment, as a practical matter, if your supervisor is the harasser you should report the harassment to the Human Resources Department.

B. Federal Defense for Limiting Liability for Damages

Under federal law, there also is a defense that may limit damages as a result of a victim's delay in reporting harassment to the employer. In sexual harassment cases where no tangible employment action had been taken against the plaintiff, the defendant employer can raise the _Ellerth/Faragher_ (217) affirmative defense described in the following Cases In Point. Under this defense the employer is required to prove that they exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. The defense limits the employer's damages; so that if the employer proves the elements of the defense, the employer is not liable for the damages that the employer could have avoided if the victim had made a timely report of the harassment.

_CASES IN POINT: Ellerth/Faragher_ _Affirmative Defense Under Federal Law_

The United States Supreme Court, in companion decisions decided on the same day, explained the affirmative defense available to employers sued under Title VII. These two cases are _Burlington Industries, Inc. v. Ellerth_ , (218) and _Faragher v. City of Boca Raton_ , (219) and therefore the affirmative defense has come to be known as the _Ellerth/Faragher_ defense.

The United States Supreme Court explained the two-prong affirmative defense available to employers in sexual harassment cases where no tangible employment action has been taken against the plaintiff. In such cases, the employer can limit their liability by showing two necessary elements:

(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and

(b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. (220)

When sexual harassment results in a tangible employment action, the employer is not allowed to claim the _Ellerth/Faragher_ affirmative defense.

A "tangible employment action" is a significant change in employment status. Examples of tangible employment actions are hiring, firing, promotion, demotion, reassignment to an unwanted position, and a significant change in pay, benefits, or work assignment.

**VI.** **Punitive Damages**

Punitive damages are damages which are meant to punish the defendant for his misconduct and to make an example of the defendant in order to deter others from similar misconduct.

A. California Law

According to California Civil Code, Section 3294 (b), (221) employers are not liable for punitive damages for an employee's harassing conduct unless the employer, "had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others; or authorized or ratified the wrongful conduct for which the damages are awarded; or was personally guilty of oppression, fraud, or malice."

In order for a corporate employer to be liable for punitive damages, the required action by the employer must have been performed by an officer, director, or managing agent of the corporation. (222)

B. Federal Law

Under the Civil Rights Act of 1991, which amended Title VII, punitive damages are available in Title VII claims. The United States Supreme Court in _Kolstad v. American Dental Association_ (223) states:

Punitive damages are limited... to cases in which the employer has engaged in intentional discrimination and has done so "with malice or with reckless indifference to the federally protected rights of an aggrieved individual."

The United States Supreme Court went on to explain:

We have concluded that an employer's conduct need not be independently "egregious" to satisfy... requirements for a punitive damages award, although evidence of egregious misconduct may be used to meet the plaintiff's burden of proof.

VII. Conclusion

Under the California FEHA, an employer must have at least five employees to be liable for discrimination, but just one for sexual harassment. Under the federal Title VII an employer must have at least fifteen employees for liability.

FEHA provides for both the liability of an employer as well as the liability of individual employees who are responsible for sexual harassment in the workplace. Under Title VII only employers are liable for sexual harassment. Employers can be held responsible for negligent failure to take steps to prevent harassment of employees by non-employees, such as vendors or customers. Employers can even be liable for off-duty sexual harassment committed by employees if there is an adequate connection between the harassing behavior and the employment.

Although non-employees are not liable under either federal or California sexual harassment statutes, non-employees may be held liable for common law torts committed against the victim, such as assault and battery.

If an employee delays in reporting sexual harassment, the employer can claim an affirmative defense that limits the damages to the employer under the theory that the employer would have been able to stop the sexual harassment and mitigate damages of the victim.

Finally, a victim can be awarded punitive damages under both California and federal law.

Chapter Six. Retaliation

I. Introduction

FEHA at California Government Code Section 12940(h) declares that it is an unlawful employment practice for an employer "to discharge, expel or otherwise discriminate against any person because the person has opposed any practices forbidden under this part" (referring to Section 12940 which prohibits, among other things, sexual harassment and gender discrimination) "or because the person has filed a complaint, testified, or assisted in any proceeding under this part." A violation of California Government Code Section 12940(h) is referred to as retaliation. The federal Title VII has a similar anti-retaliation provision. A typical retaliation claim arises if an employee makes a claim of sexual harassment or gender discrimination and the employer responds with some type of adverse employment action against the employee. This chapter addresses retaliation claims.

If, for example, an employee makes a claim of sexual harassment that does meet the legal criteria of being sufficiently severe or pervasive, then the employer retaliates with adverse employment action against the employee, the employee still has the claim for retaliation independent of the merits of the sexual harassment claim that triggered the retaliation. When the underlying claim for sexual harassment has legal merit and the employee has suffered retaliation in addition, the employee will typically bring claims for both sexual harassment and retaliation.

II. What is Retaliation?

It is illegal for an employer to retaliate against a sexual harassment or discrimination victim for filing a charge with the DFEH or EEOC, participating in a sexual harassment investigation, or opposing discriminatory practices.

While both the individual harasser and the employer are liable for sexual harassment in California, the California Supreme Court has confirmed that generally only the employer is responsible for retaliation. Individuals are generally not liable for retaliation in California. (See discussion of _Jones v. The Lodge at Torrey Pines Partnership_ , in Section IV of Chapter Five on employer and individual responsibilities. In footnote 4 of the California Supreme Court's majority opinion, the Court specifically said it was not deciding the issue of whether or not a harasser may be held personally liable for retaliation.)

According to Judicial Council of California, Civil Jury Instruction, CACI 2505, (224) in order for a plaintiff to prove retaliation, the plaintiff must prove the following elements:

1. That the plaintiff was involved in an activity protected by FEHA;

2. That the defendant engaged in an adverse employment action against the plaintiff; or that the defendant engaged in conduct that, taken as a whole, materially and adversely affected the terms and conditions of the plaintiff's employment;

3. That the plaintiff's protected activity was a motivating reason for the defendant's decision to take an adverse employment action against the plaintiff;

4. That the plaintiff was harmed; and

5. That the defendant's conduct was a substantial factor in causing the plaintiff's harm.

Title VII prohibits discrimination against an employee or job applicant who has "opposed any practice made an unlawful employment practice" by Title VII, or has "made a charge, testified, assisted, or participated in any manner" in a Title VII investigation, proceeding, or hearing. (225)

III. Proving Retaliation

The success of a retaliation claim can turn on a determination of whether the defendant has taken an adverse employment action against the plaintiff. Under California law, in order to be considered an adverse employment action, the employer's action must materially affect the terms and conditions of employment. This standard is called the materiality test. The following Case In Point explains what acts should be considered in determining whether an adverse employment action has taken place under the materiality test.

CASE IN POINT: Totality of the Circumstances Must Be

Considered When Determining Whether an Adverse

Employment Action Has Been Taken

In _Yanowitz v. L'Oreal USA, Inc._ , (226) the California Supreme Court concluded that the "proper standard for defining an adverse employment action is the 'materiality' test, a standard that requires an employer's adverse action to materially affect the terms and conditions of employment." (227) In using the materiality test, the California Supreme Court ruled that a trial court must consider the totality of the circumstances in determining whether alleged retaliatory actions taken against an employee rise to the level of "adverse employment action." The California Supreme Court stated, "Contrary to L'Oreal's assertion that it is improper to consider collectively the alleged retaliatory acts, there is no requirement that an employer's retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries." (228)

In _Yanowitz_ , the plaintiff, Elysa, refused to carry out an order from a male supervisor to fire a female sales associate who was "not good looking enough" and told her to "[g]et me somebody hot." (229) Elysa refused to carry out this order because she believed that it was unlawful discrimination.

After this refusal, she was subjected to hostile treatment which "undermined her relationship with the employees she supervised and caused severe emotional distress..." (230) Elysa quit her job and sued for retaliation.

In _Yanowitz_ , the California Supreme Court discussed what constitutes an adverse employment action in a retaliation case, and ruled that it is appropriate to consider the "totality of the circumstances" in determining whether an employer has taken adverse employment action against an employee. The California Supreme Court explains:

Retaliation claims are inherently fact-specific, and the impact of an employer's action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.... (231)

The Court goes on to state that FEHA protects an employee against:

unlawful discrimination with respect not only to so-called ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially

affect an employee's job performance or opportunity for advancement in his or her career.... Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions.... (232)

In contrast, under federal law, the materiality test is not the standard for defining an adverse employment action. Instead, the federal courts use the "deterrence" test to determine what constitutes an adverse employment action taken against an employee in a retaliation claim. The deterrence test is described by the United States Supreme Court in _Burlington Northern & Santa Fe Railway Co. v. White_. (233) Under _Burlington Northern & Santa Fe Railway Co. v. White_, an action that an employer intentionally takes that would have "dissuaded a reasonable worker from making or supporting a charge of discrimination" is retaliation, as explained in the following Case In Point.

CASE IN POINT: United States Supreme Court Rules That Retaliation Includes Acts That Deter Reporting

In the 2006 United States Supreme Court case of _Burlington Northern & Santa Fe Railway Co. v. White_, (234) the plaintiff, Sheila White, was the only woman working in the maintenance of way department at her employment, where operating a forklift was her main responsibility.

Sheila complained to her employer about the harassment she suffered at the hands of her immediate supervisor, Joiner. Joiner had repeatedly told her that women should not be working on forklift duty, and he made other insulting and inappropriate remarks to her in front of her male coworkers. The employer suspended Joiner and ordered him to attend sexual harassment training. However, the employer also removed Sheila from forklift duty and reassigned her to standard track laborer tasks. The employer explained that Sheila's reassignment reflected coworkers' complaints that a more senior man should have the less arduous and cleaner job of forklift operator.

Approximately two months later, after a disagreement between Sheila and a supervisor, the employer suspended Sheila without pay. Sheila invoked internal grievance procedures that resulted in a determination that she was not insubordinate, and she was reinstated. Sheila then filed a Title VII action in federal court against her employer, claiming that the reassignment of her job responsibilities and her suspension amounted to unlawful retaliation.

The issues before the United States Supreme Court were (1) whether the anti-retaliation provisions of Title VII confine liability for retaliation to employers' activities that affect the terms and conditions of employment and (2) how harmful adverse employment actions must be to constitute retaliation. The Supreme Court held that the scope of the anti-retaliation provision of Title VII extends beyond workplace-related or employment-related retaliatory acts and harm, because a limitation to employment-related actions would not deter the many forms that effective retaliation can take. The Supreme Court also held that to prove retaliation under Title VII, a plaintiff must show that a reasonable employee would have found the employer's actions materially adverse. The Court explained, "In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." (235)

CASE IN POINT: Protected Activity Under FEHA:

Employee Need Not Necessarily Make a Specific Complaint to the Employer for a Finding of Retaliation

In _Yanowitz v. L'Oreal USA, Inc._ , (236) the California Supreme Court also considered what actions by the plaintiff may qualify as a protected activity under FEHA _._ The California Supreme Court found that if an employee refuses to carry out an order because the employee "reasonably believes" that the order is discriminatory, then the employee is entitled to claim retaliation against the employer for later adverse employment actions caused by the employee's failure to comply with the order. This is true even if the order was not in fact discriminatory, and even if, as in this case, the employee does not explicitly tell the employer that he or she believes that the order is discriminatory.

The California Supreme Court in _Yanowitz_ explains:

when the circumstances surrounding an employer's conduct are sufficient to establish that an employer knew that an employee's refusal to comply with an order was based on the employee's reasonable belief that the order is discriminatory, an employer may not avoid the reach of the FEHA's antiretaliation provision by relying on the circumstance that the employee did not _explicitly_ inform the employer that she believed the order was discriminatory. (237)

However, the California Supreme Court notes, "Standing alone, an employee's unarticulated belief that an employer is engaging in discrimination will not suffice... where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination." (238)

Even though an employee's unarticulated belief will not suffice, the _Yanowitz_ court, quoting _Wirtz v. Kansas Farm Bureau Services, Inc._ , (239) emphasizes that it is clear that "[a]n employee is not required to use legal terms or buzzwords when opposing discrimination. The court will find opposing activity if the employee's comments, when read in their totality, oppose discrimination." (240)

IV. Conclusion

Employers try to be subtle about retaliating against employees who report sexual harassment or gender discrimination. An employer will not always simply fire an employee, but rather they may start to give the employee poor performance reviews and pass the employee over for advancement. As a result, the California courts use the "materiality test" which means that the court will consider the totality of the circumstances in determining whether the employer has retaliated against the employee. As a part of this inquiry, the court will look at the unique circumstances of the affected employee in the context of the claim at the particular workplace. The federal courts use a slightly different test called the "deterrence test." The inquiry is whether the employer's action would have dissuaded a reasonable worker from making or supporting a charge of harassment or discrimination.

In the _Yanowitz_ case, the California Supreme Court found it was enough to support a retaliation claim if the employer knew that an employee's refusal to comply with an order was based on the employee's reasonable belief that the order was discriminatory. However, the employee must still bring evidence that the employer knew the employee's opposition to the order was based on the reasonable belief that carrying out the order would be discriminatory against another employee. Thus, it can be important for an employee to identify opposition to an order as based on a reasonable belief of discrimination if the order is carried out; the articulation of the employee's belief that a directive of an employer is discriminatory will constitute evidence that the employer knew that the employee's opposition was motivated by the purpose of avoiding discrimination.

Chapter Seven. Infliction of Emotional Distress and Other Torts the Harasser May Have Committed

I. Introduction

In addition to the statutory claims under California FEHA and federal Title VII, a victim of sexual harassment may also have related common law tort claims against the harasser. Depending upon the circumstances of the case, attorneys make tactical decisions as to whether to accompany a claim for sexual harassment with a claim for infliction of emotional distress, assault, battery, defamation, invasion of privacy, or some other tort that might fit the circumstances. Tort claims can be particularly useful in the event that a statutory element or prerequisite for a claim has not been met, such as when a plaintiff has failed to obtain a right to sue letter for all or part of a harassment claim.

A sexual harassment victim should be aware that mental health care records can come into play in making a claim for psychological damages under sexual harassment statutory claims or for common law tort claims for emotional distress.

When a victim suffers from sexual harassment, there are often related torts that the harasser has committed during the course of the harassment. A tort is a civil wrong recognized by the common law that has caused damage to a person or property, for which a plaintiff can sue for damages. Torts that often coincide with sexual harassment are intentional infliction of emotional distress, negligent infliction of emotional distress, assault, battery, defamation, and invasion of privacy.

An attorney can advise a victim of sexual harassment on any other claims which the victim may have against the employer or harasser in addition to a sexual harassment claim. The addition of alternative claims may or may not help to attain a greater award for damages, depending on the facts of the case.

Often, an attorney will decide to add a claim for a tort as a back-up devise to the central claim for sexual harassment. However, normally the damages for the harassment and the tort will be duplicative, and therefore will not result in a higher damage award for the plaintiff. If a jury does award damages to a plaintiff for emotional distress under general damages resulting from the sexual harassment, and then also awards the plaintiff damages for the tort of infliction of emotional distress based on the same harassing conduct, the damages could be duplicative, and the award could be dramatically reduced by the court.

II. Intentional Infliction of Emotional Distress

To establish a claim of intentional infliction of emotional distress, a victim must prove that the defendant's conduct was outrageous and that the defendant either intended to cause emotional distress or acted with reckless disregard of the probability that the victim would suffer emotional distress, knowing that the victim was present when the conduct occurred. The victim must also prove that he or she actually suffered severe emotional distress, and that the defendant's conduct was a substantial factor in causing the severe emotional distress. (241)

"Outrageous behavior" has a specific legal meaning in California. Judicial Council of California Jury Instruction, CACI 1602, (242) states that "outrageous behavior" means conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if "a reasonable person would regard the conduct as intolerable in a civilized community." Outrageous conduct does not include trivial matters such as "indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure." (243)

A. Common Law Verses Emotional Distress as Part of Damages for Sexual Harassment Claim

Proving that conduct was "outrageous," as is necessary to prove intentional infliction of emotional distress, is often a very difficult burden for a victim. For this reason, it can often be best for a victim of sexual harassment not to include a common law claim for intentional infliction of emotional distress and instead rely on proving damages for emotional distress as a part of the sexual harassment claim.

In addition to creating jury instructions, the Judicial Council of California has also created official verdict forms for use in California courts. While they are not mandatory, these forms are often used in sexual harassment cases. There is a different verdict form for each cause of action claimed in any given case. Included on the verdict form, there is a list of possible damages suffered by the plaintiff. The jury is instructed to fill out the dollar amount they believe the plaintiff suffered as a result of each item of damages on the list. Included on the list of items of damages on these verdict forms for sexual harassment cases are past and future noneconomic loss, including physical pain or mental suffering. (244) It is under the category of pain and suffering that the jury can award the plaintiff damages for emotional distress as the result of the sexual harassment claim.

B. Emotional Distress and Workers' Compensation Law

Although a cause of action for infliction of emotion distress arising from sexual harassment can generally be added to a victim's complaint, an employee that has suffered from emotional distress at work cannot always bring a civil lawsuit. An employee suffering from emotional distress generally will need to bring a workers' compensation claim instead of a civil lawsuit. In workers' compensation law, the exclusive remedy provisions (245) state that a workers' compensation claim is the exclusive remedy available for injuries that occur at the workplace. This includes both physical and psychological injuries. The court in _Accardi v. Superior Court_ (246) explained:

Emotional distress caused by misconduct in employment relations involving, for example, promotions, demotions, criticism of work practices, negotiations as to grievances, is a normal part of the employment environment. A cause of action for such a claim is barred by the exclusive remedy provisions of the workers' compensation law.

However, the court in Accardi recognized that a civil lawsuit for emotional distress which is caused by discrimination or sexual harassment in the workplace is not barred by the workers' compensation exclusive remedy provision. (247)

In _Accardi_ , the plaintiff suffered emotional distress because of a pattern of discrimination and brought a civil lawsuit for both sexual harassment and an additional cause of action for infliction of emotional distress. The _Accardi_ court stated that the plaintiff's cause of action for emotional distress was "founded upon actions that are outside the normal part of the employment environment and violate this state's policy against sex discrimination." (248) As such, the plaintiff's claim for emotional distress was not barred by the exclusive remedy provisions of workers' compensation laws.

III. Negligent Infliction of Emotional Distress

To establish a claim of negligent infliction of emotional distress, the victim must prove the defendant was negligent, that the victim suffered serious emotional distress, and that the defendant's negligence was a substantial factor in causing the serious emotional distress. (249)

Judicial Council of California Jury Instruction, CACI 1620 (250) states that emotional distress includes:

suffering, anguish, fright, horror, nervousness, grief, anxiety, worry, shock, humiliation, and shame. Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it. (251)

A. Emotional Distress and Discovery

Victims of sexual harassment claim general damages; that is they make a claim for damages based on the pain and suffering that is generally associated with the injury. In addition, many sexual harassment victims claim emotional distress. Claims for emotional distress are supported by particular psychiatric symptoms that the victim suffered as a result of sexual harassment.

When psychiatric symptoms come into play that are beyond the normal pain and suffering associated with the incident and the victim makes a claim for emotional distress, the attorneys for the employer in a sexual harassment lawsuit will make a demand for production of the mental health care records of the victim and may request that the victim undergo a mental examination by an independent psychiatric health care practitioner.

Although a plaintiff in a sexual harassment case may be able to say that his or her general mental suffering is limited to that which is usually associated with the harassment he or she suffered, it is not always advisable for a plaintiff to limit his or her damages in this way in a sexual harassment lawsuit. The core of the claim of damages in a sexual harassment lawsuit for the plaintiff is usually the emotional distress that the plaintiff suffered as a result of being subject to harassment. It is true that the downside of making such a claim is that the victim's mental health care records come into play as an item of discovery and the defendant employer may request an independent mental examination. However, a plaintiff's attorney can seek stipulations or in the alternative make motions to the court for protective orders. A typical protective order will limit the exposure of the plaintiff's mental health care records and mental examination to legitimate uses within the particular lawsuit only.

IV. Assault and Battery

Battery is intentional conduct which results in a harmful or offensive contact with another person. Assault occurs when someone causes you to think that they are about to commit battery against you.

If you are subjected to unwanted touching which is harmful or offensive, then you may have a claim of battery against your harasser. If you are afraid that this kind of unwelcome contact is going to immediately occur, then you may have an assault claim.

For example, if a supervisor intentionally fondles a female employee's breast as a condition of keeping her job, then on top of having a claim for sexual harassment, the employee may also sue for battery.

V. Conclusion

A sexual harassment victim should discuss the additional common law torts that an attorney might bring as a practical matter to accompany a sexual harassment claim. Victims of sexual harassment should particularly talk to their attorneys about the possible exposure of their mental health care records in relation to claims for psychological damages as a result of sexual harassment. Steps can be taken to obtain protective orders that will minimize who will see the psychological records of the victim.

Chapter Eight. So I Have a Case, What Now?

I. Introduction

For sexual harassment and discrimination claims, before an employee can bring a lawsuit for damages, an employee must first exhaust administrative remedies by filing a claim with the California DFEH or the federal EEOC. The filing of the administrative claim is required by the statutes, FEHA and Title VII, as a necessary step before one can bring a lawsuit. The complaint to the California DFEH or to the federal EEOC must contain sufficient facts to support the eventual claims in the lawsuit for either harassment, discrimination, or retaliation in order for the claim in their lawsuit to survive legal scrutiny.

Under California FEHA, a complaint must be brought to the DFEH within one year from the date of the last incident of harassment or discrimination. Under Title VII, the victim has 180 days from the incident, but that period is extended to 300 days if the victim also institutes a complaint with the DFEH.

This chapter discusses the statutes of limitations and the manner in which the courts deal with continuing violations, such as where the incidents of sexual harassment occur over periods of years.

Many employers are now requiring employees to sign mandatory arbitration agreements, which can be enforceable for arbitration of sexual harassment claims if the employer follows all of the requirements for an arbitration agreement.

II. Consulting an Attorney

If after reading the material in the previous chapters you believe that you have a valid sexual harassment or discrimination claim, or you need clarification on whether your claim is viable, an appropriate next step is to consult an attorney who specializes in sexual harassment and discrimination.

It is best to get an attorney involved in your case as early as possible. Attorneys will often make a demand for settlement before the victim files an administrative complaint with the DFEH or EEOC. An attorney can help you prepare to file a complaint with the DFEH or EEOC to make sure that all of your legal claims are included. A sexual harassment attorney knows the process and can help you in this unfamiliar legal territory to protect your rights and choose the best strategy with which to move forward.

After attaining a right to sue letter from the EEOC or the DFEH, your attorney can then file a complaint with the appropriate court and can work on negotiating with the other side while preparing your case for litigation. An attorney will be able to advise you and come up with an effective plan of attack, depending on the unique facts of your case.

A. Administrative Hearings as a Possible Alternative to Litigation in Civil Court

After an interview with the complainant, the DFEH drafts a complaint that the complainant approves by signing. The complaint is then served to the employer and/or harassers. After the filing of any complaint alleging facts sufficient to constitute a FEHA violation, the DFEH is obligated to initiate an investigation. (252) However, due to practical restraints of time and resources, the DFEH is generally not able to do a thorough investigation.

The DFEH will close the case if the investigation does not show a violation of the law. If the DFEH finds facts sufficient for the complainant to proceed with a lawsuit, the DFEH will generally provide the complainant with a right to sue letter for a private lawsuit and then close its case. However, the DFEH and the EEOC occasionally, but not often, prosecute cases on behalf of victims in public administrative hearings.

The DFEH may, in its discretion, litigate a harassment case in a public administrative hearing before the Fair Employment and Housing Commission. In this process, the DFEH issues what is known as a written accusation. The respondent is required to answer the charges in the accusation at a hearing. (253) If the victim claims emotional distress or administrative fines as damages, the responding employer and/or harasser may choose to have the case moved to a California Superior Court. Even if the respondent requests that the case be moved to civil court, the DFEH will still prosecute the case for the victim. (254)

The DFEH advises that the advantages to litigating an employment discrimination case in Superior Court as opposed to relying on an administrative hearing are as follows:

  * DFEH's authority to award damages for emotional distress and administrative fines is limited to a combination of $150,000 per Respondent.

  * The DFEH has no authority to award punitive damages.

  * Administrative fines are payable to the State General Fund, not the individual victim. (255)

The DFEH also advises that the potential benefit of relying on an administrative hearing instead of suing in court is that the process before the Fair Employment and Housing Commission may be faster and less expensive because law and motion practice and discovery is limited.

III. Immediate Next Steps

A. Administrative Agency Complaint Requirements

FEHA, at Government Code Section 12960, (256) sets forth the following statement explaining the information to be included in the complaint to the DFEH:

Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department.

1. Exhaustion of Administrative Remedies

Before bringing a lawsuit for sexual harassment, discrimination, or retaliation, a victim must first exhaust the administrative process. To bring a lawsuit in California Superior Court, victims must exhaust the administrative remedies with the DFEH. To bring a lawsuit in federal court, victims must exhaust the administrative remedies with the EEOC.

The California Court of Appeal for the Sixth District (257) explained:

Under California law, "an employee must exhaust the ... administrative remedy" provided by [FEHA], by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) ... and obtaining the DFEH's notice of right to sue ... "before bringing suit on a cause of action under the act or seeking the relief provided therein ..." (258) To exhaust his or her administrative remedies as to a particular act made unlawful by [FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts (259).... We have recognized, in the context of [FEHA], that "the failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect," and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment.... (260)

_CASES IN POINT:_ **Sufficient Facts in Complaint**

In _Garcia v. Los Banos Unified School District_ , (261) the victim's DFEH claim involved sexual harassment, failure to remedy harassment, and retaliation. The victim's complaint included allegations not expressly stated in the DFEH claim, but the victim was found to have exhausted her administrative remedies regarding her claims because "the allegations in the complaint relate to matters that are either well within the scope of the DFEH's actual investigation or an investigation that could have reasonably been expected to grow out of the charge of discrimination." (262)

In _Martin v. Lockheed Missiles & Space Co._, (263) the plaintiff, Noreen Martin, filed an administrative charge of age discrimination against defendant employer Lockheed with the EEOC. The EEOC then referred the charge to the DFEH and the DFEH gave Noreen a right to sue letter. Ten months later, Noreen filed an amended administrative charge with the EEOC, adding theories of sexual discrimination, sexual harassment, and retaliation. The EEOC in turn gave Noreen a right to sue letter. Noreen did not amend her administrative charge with the DFEH, and so the only claim before the DFEH was one of age discrimination. Noreen filed a lawsuit in California for state claims under FEHA.

The court in _Martin_ said that if Noreen had wished to avail herself of state judicial remedies for her additional claims, it was essential that she undertake by reasonable means to make the additional claims known to the DFEH. In the court's view she did not do so, and therefore the court found that she did not exhaust her state administrative remedies.

_CASE IN POINT:_ **Sufficiency of Filing For a Charge**

In _Federal Express Corporation v. Holowecki_ , (264) the plaintiffs in an age discrimination case filed an EEOC intake questionnaire and attached a signed affidavit describing in more detail the alleged discrimination, including a request that the EEOC take action to stop the discrimination. The EEOC did not treat these documents as a charge, and therefore the defendant employer was not made aware of the complaint until the lawsuit.

Under Title VII, a plaintiff must file a charge with the EEOC at least 60 days before filing a lawsuit. Title VII does not give a definition for a "charge" and therefore the United States Supreme Court had to decide whether the papers that the plaintiffs filed with the EEOC were sufficient to constitute a charge and allow them to sue in federal court. The United States Supreme Court found that in this case, the plaintiffs' papers were sufficient to constitute a "charge," and that the fact that the EEOC did not act on the papers is "unfortunate", but nevertheless does not take away the plaintiffs' rights to bring a lawsuit in federal court against the defendant employer.

B. Right to Sue Letter Required

As a prerequisite for a lawsuit for sexual harassment, a potential plaintiff is _required to get a right to sue letter_ from either the DFEH or the EEOC.

Complaints filed with the DFEH are also filed with the EEOC if the matter falls within the EEOC's jurisdiction. As a substantially equivalent agency, the EEOC usually accepts the DFEH's findings.

C. CAUTION AHEAD: Statute of Limitations

If an administrative claim to the DFEH or the EEOC is not filed within the time period provided by the applicable statute of limitations, then the case is subject to being forever barred by the courts. If a sexual harassment victim does not file an administrative complaint within the required amount of time, then that victim will not be able to move forward with a lawsuit.

Complaints must be filed with the DFEH within one year from the date of the last incident of sexual harassment, which period may be extended up to 90 days if the alleged victim first obtained knowledge of the facts of the harassment after the expiration of the one year period from the date of the occurrence. (265)

Pursuant to Title VII, (266) a victim of sexual harassment generally has _180 DAYS_ from the incident of harassment to file a charge with the EEOC, but this statute of limitations is extended to 300 days if the victim institutes proceedings with the DFEH or any other state or local agency that has the authority to grant or seek relief from unlawful employment practices.

After a claimant files an administrative complaint and after the claimant gets a right to sue letter, then the claimant must file a private civil lawsuit within the time specified in the right to sue letter, which is within one year of the date of a right to sue letter from the DFEH.

1. Continuing Violations Doctrine

If discrimination or harassment has taken place over a long period of time, a victim is able to sue for the entire course of the discrimination or harassment if the DFEH charge properly states a "continuing violation" and the charge is filed within the applicable statute of limitations period from the last incident of discrimination or harassment.

In _Regents of University of California v. Superior Court_ , (267) the court found that the plaintiff must present evidence on summary judgment that there was an incident of discrimination which occurred within the statute of limitation period.

_Case in point_ _: Continuing Violations Doctrine Applied Where Victim Alleged 11-Year Pattern of Sexual Harassment_

In _Accardi v. Superior Court_ , (268) the plaintiff sued the defendant for 11 years of sexual harassment, which continued into the one year prior to her filing a charge with the DFEH. The _Accardi_ court applied the continuing violations doctrine to allow the plaintiff to sue for damages for all 11 years worth of violations since the last incident occurred within the one year statute of limitations period.

In _Accardi_ , the harasser started rumors about the plaintiff and her sexual behavior, gave her unfavorable work assignments and unfavorable work shifts, made complaints about her performance which were unfounded, excluded her from group activities, and told her that she had to deal with the "double standards" which existed for male and female police officers. There were also repeated condescending remarks about women in general made at the workplace and unwanted sexual advances made to the plaintiff.

Toward the end of the 11 year period of harassment, the demeaning conduct directed at the plaintiff was arguably nonsexual. However, the _Accardi_ court concluded that the conduct that occurred during the final stages of plaintiff's employment was part of a continuing course of sexual discrimination in a police department which did not want women in "a man's job." The court ruled that because this conduct was part of the harassment and it occurred within a year of the plaintiff's filing a complaint, the statute of limitations was satisfied through the use of the continuing violations doctrine.

_Case in point_ _: Continuing Violations Doctrine and_

Retaliation

In _Yanowitz v. L'Oreal USA, Inc._ , (269) the California Supreme Court found that a plaintiff may invoke the continuing violations doctrine to rely upon allegedly retaliatory acts that occurred outside the limitations period when such acts are related to acts that occur within the limitations period prescribed by the FEHA. The court explains:

Here, the plaintiff alleges a retaliatory course of conduct rather than a discrete act of retaliation, and as we have concluded above, a series of separate retaliatory acts collectively may constitute an "adverse employment action" even if some or all of the acts might not be individually actionable.... If, however, we were to foreclose application of the continuing violation doctrine as a matter of law in retaliation cases, the statute of limitations would start running upon the happening of the first act of retaliation, even if that act would not be actionable standing alone. A rule that would force employees to bring actions for "discrete acts" of retaliation that have not yet become ripe for adjudication, and that the employee may not yet recognize as part of a pattern of retaliation, is fundamentally incompatible with the twin policy goals of encouraging informal resolution of disputes and avoiding premature lawsuits....Accordingly, foreclosing the application of the continuing violation doctrine in a case such as this one, where the plaintiff alleges a retaliatory course of conduct rather than a discrete act of retaliation would undermine the fundamental purpose of the FEHA.

IV. Contractual Arbitration

Contractual arbitration has become increasingly popular for employers over the years. Contractual arbitration occurs when two parties agree that if they have a dispute in the future, they will resolve the dispute through arbitration instead of through the court system.

An arbitration is a hearing in which the parties bring their dispute to an unbiased and neutral third person, who acts as a judge and makes a ruling. Both parties have an opportunity to be heard at the arbitration. In a contractual arbitration, the parties generally have agreed in advance to be bound by the award that the arbitrator issues after the hearing.

Many employers require new employees to sign arbitration agreements upon being hired. If you signed an employment agreement with an arbitration clause, then you may be forced to go to contractual arbitration instead of filing a lawsuit. However, there are rules which must be followed in order for you to be bound to arbitration, and an attorney can help you to assess your rights after reviewing the arbitration clause.

_Case in point_ _: Mandatory Arbitration Agreement Enforceable Only if Fairness Requirements Met_

In _Armendariz v. Foundation Health Psychcare Services, Inc._ , (270) the California Supreme Court approved the use of mandatory arbitration agreements by California employers, so long as certain requirements are met. According to the California Supreme Court, a mandatory arbitration agreement will not be enforceable on an employee unless the agreement:

(1) provides for neutral arbitrators,

(2) provides for more than minimal discovery,

(3) requires a written reward,

(4) provides for all of the types of relief that would otherwise be available in court, and

(5) does not require employees to pay either unreasonable costs or any arbitrators' fees or expenses as a condition of access to the arbitration forum.

Because the arbitration at issue in the case did not meet these requirements, it was held to be unenforceable.

_Case in point_ _: Consent to Arbitration Agreement Required_

In 2007, in _Mitri v. Arnel Management Co._ , (271) two former employees sued their former employer for sexual discrimination and harassment. In response to the lawsuit, the defendant company filed a motion with the court asking the court to force the plaintiffs to bring their claim through arbitration instead of with the court. The company argued that the plaintiffs had each signed a binding arbitration agreement. However, the company did not have copies of any such agreement or any proof that the plaintiffs had signed an arbitration agreement. The company argued that the plaintiffs agreed to arbitrate by continuing to work for the company after receiving the employee handbook, which contained an arbitration provision. The Court found that the arbitration clause in the handbook only worked to put employees on notice that they would be asked to sign a separate arbitration agreement.

California contract law applies to determine whether the parties formed a valid agreement to arbitrate. (272) The consent of the parties to a contract must be communicated to each other to be binding. The plaintiffs in this case never consented to arbitration, and so they were not bound to arbitration.

VI. Conclusion

In order to bring a lawsuit for sexual harassment or discrimination, an employee must first get a right to sue letter from the DFEH or the EEOC. The process for getting a right to sue letter is to file a complaint with the DFEH or EEOC. In California, attorneys generally prefer that the victim file the complaint with the DFEH.

Because it is important that the complaint to the DFEH or the EEOC contains facts sufficient to support the potential claims for a lawsuit, it is advisable for a victim of sexual harassment to consult an attorney early in the process for advice about making the administrative claim.

The DFEH and the EEOC typically give appointment dates to employees who call them with claims. The appointments can often be many weeks away, so it is advisable for a claimant to leave sufficient lead time in order to avoid a statute of limitation problem, such as the FEHA rule that one must bring an administrative complaint within one year of the incident in order to get a right to sue letter.

Employees who are considering making claims should look at their employment agreements to see if they have signed a mandatory arbitration agreement with the employer. If there is an agreement for arbitration, the employee should bring that agreement to the attention of the attorney that the employee consults.

Final Advice

Be brave. It is not easy to go up against employers, their insurers and their attorneys. The opposition typically tries to discourage claimants by raising issues with the intent to embarrass or degrade the employee. Sometimes, such attempts backfire on the employers, but in the meantime it can be a difficult experience for the employee claimant.

Be strong. The claimant must be strong and determined. In order to be successful, a claimant should help his or her attorney to get the best results. Claimants have to provide information to their attorneys, they have to testify during discovery, and if the case is not settled, they have to testify at trial. The process can be time consuming, so it is important for claimants to be prepared to press forward with their attorney for the best results.

This advice is not meant to discourage any victim of unlawful sexual harassment from filing a lawsuit, but is instead meant to prepare a victim for the realities of moving forward with a suit. Not only can a successful claimant be rewarded monetarily with damages, but also can attain the personal satisfaction of standing up for oneself, overcoming adversity, and showing that sexual harassers must pay for abusing their power.

Too many victims suffer in silence. By stepping forward with a lawsuit, a victim is not only standing up for him or herself, but the victim is also fighting for the greater cause of helping to put an end to sexual harassment in the workplace. The legal system, by holding harassers and employers accountable for their misconduct, is a crucial part of the fight against the injustice of sexual harassment.

If after reading this book you believe that you have a viable claim for workplace harassment, discrimination or retaliation, feel empowered with the knowledge that you are not alone and that a sexual harassment attorney can work with you to redress the problems you have faced, and to move on with strength and courage.

### APPENDIX A

Selected Sections of the

California Fair Employment and Housing Act

Cal. Gov. Code § 12926. Definitions Regarding Unlawful Practices (selected provisions)

Cal. Gov. Code § 12926 (c)

"Employee" does not include any individual employed by his or her parents, spouse, or child, or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.

Cal. Gov. Code § 12926 (d)

"Employer" includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:

"Employer" does not include a religious association or corporation not organized for private profit.

Cal. Gov. Code § 12926 (p)

"Sex" includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. "Sex" also includes, but is not limited to, a person's gender, as defined in Section 422.56 of the Penal Code.

Cal. Gov. Code § 12926 (q)

"Sexual orientation" means heterosexuality, homosexuality, and bisexuality.

Cal. Gov. Code § 12926 (r)

"Supervisor" means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Cal. Gov. Code § 12940. Unlawful Employment Practices (selected provisions)

It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

Cal. Gov. Code § 12940 (a)

For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

Cal. Gov. Code § 12940 (c)

For any person to discriminate against any person in the selection or training of that person in any apprenticeship training program or any other training program leading to employment because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of the person discriminated against.

Cal. Gov. Code § 12940 (d)

For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any non-job-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, or any intent to make any such limitation, specification or discrimination. Nothing in this part prohibits an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, where the law compels or provides for that action.

Cal. Gov. Code § 12940 (h)

For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.

Cal. Gov. Code § 12940 (i)

For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.

Cal. Gov. Code § 12940 (j)

(1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, to harass an employee, an applicant, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, or persons providing services pursuant to a contract in the workplace, 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 which the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.

(2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.

(3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.

(4)(A) For purposes of this subdivision only, "employer" means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of "employer" in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.

(B) Notwithstanding subparagraph (A), for purposes of this subdivision, "employer" does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.

(C) For purposes of this subdivision, "harassment" because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.

(5) For purposes of this subdivision, "a person providing services pursuant to a contract" means a person who meets all of the following criteria:

(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.

(B) The person is customarily engaged in an independently established business.

(C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer's work.

Cal. Gov. Code § 12940 (k)

For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.

Cal Gov. Code § 12945. Pregnancy Disability Leave (selected provisions)

In addition to the provisions that govern pregnancy, childbirth, or related medical conditions in Sections 12926 and 12940, it shall be an unlawful employment practice, unless based upon a bona fide occupational qualification:

Cal. Gov. Code § 12945(a)

For an employer to refuse to allow a female employee disabled by pregnancy, childbirth, or related medical conditions to take a leave for a reasonable period of time not to exceed four months and thereafter return to work, as set forth in the commission's regulations. The employee shall be entitled to utilize any accrued vacation leave during this period of time. Reasonable period of time means that period during which the female employee is disabled on account of pregnancy, childbirth, or related medical conditions.

An employer may require an employee who plans to take a leave pursuant to this subdivision to give the employer reasonable notice of the date the leave shall commence and the estimated duration of the leave.

Cal. Gov. Code § 12945(b)

(1) For an employer to refuse to provide reasonable accommodation for an employee for conditions related to pregnancy, childbirth, or related medical conditions, if she so requests, with the advice of her health care provider.

(2) For an employer who has a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of temporarily disabled employees to less strenuous or hazardous positions for the duration of the disability to refuse to transfer a pregnant female employee who so requests.

(3) For an employer to refuse to temporarily transfer a pregnant female employee to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where that transfer can be reasonably accommodated. However, no employer shall be required by this section to create additional employment that the employer would not otherwise have created, nor shall the employer be required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job.

Cal. Gov. Code § 12945(c)

This section shall not be construed to affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth under any other provisions of this part, including subdivision (a) of Section 12940.

Cal Gov. Code § 12945.2. Family Rights Act (selected sections)

Cal. Gov. Code 12945.2 (a)

Except as provided in subdivision (b), it shall be an unlawful employment practice for any employer, as defined in paragraph (2) of subdivision (c), to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave. The commission shall adopt a regulation specifying the elements of a reasonable request.

Cal. Gov. Code 12945.2 (b)

Notwithstanding subdivision (a), it shall not be an unlawful employment practice for an employer to refuse to grant a request for family care and medical leave by an employee if the employer employs less than 50 employees within 75 miles of the worksite where that employee is employed.

Cal. Gov. Code 12945.2 (c)

For purposes of this section:

(1) "Child" means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either of the following:

(A) Under 18 years of age.

(B) An adult dependent child.

(2) "Employer" means either of the following:

(A) Any person who directly employs 50 or more persons to perform services for a wage or salary.

(B) The state, and any political or civil subdivision of the state and cities.

(3) "Family care and medical leave" means any of the following:

(A) Leave for reason of the birth of a child of the employee, the placement of a child with an employee in connection with the adoption or foster care of the child by the employee, or the serious health condition of a child of the employee.

(B) Leave to care for a parent or a spouse who has a serious health condition.

(C) Leave because of an employee's own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.

(4) "Employment in the same or a comparable position" means employment in a position that has the same or similar duties and pay that can be performed at the same or similar geographic location as the position held prior to the leave.

(5) "FMLA" means the federal Family and Medical Leave Act of 1993 (P.L. 103-3).

(6) "Health care provider" means any of the following:

(A) An individual holding either a physician's and surgeon's certificate issued pursuant to Article 4 (commencing with Section 2080) of Chapter 5 of Division 2 of the Business and Professions Code, an osteopathic physician's and surgeon's certificate issued pursuant to Article 4.5 (commencing with Section 2099.5) of Chapter 5 of Division 2 of the Business and Professions Code, or an individual duly licensed as a physician, surgeon, or osteopathic physician or surgeon in another state or jurisdiction, who directly treats or supervises the treatment of the serious health condition.

(B) Any other person determined by the United States Secretary of Labor to be capable of providing health care services under the FMLA.

(7) "Parent" means a biological, foster, or adoptive parent, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.

(8) "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either of the following:

(A) Inpatient care in a hospital, hospice, or residential health care facility.

(B) Continuing treatment or continuing supervision by a health care provider.

Cal. Gov. Code 12945.2 (d)

An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (a), except as required by subdivision (e).

Cal. Gov. Code 12945.2 (e)

An employee taking a leave permitted by subdivision (a) may elect, or an employer may require the employee, to substitute, for leave allowed under subdivision (a), any of the employee's accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer. If an employee takes a leave because of the employee's own serious health condition, the employee may also elect, or the employer may also require the employee, to substitute accrued sick leave during the period of the leave. However, an employee shall not use sick leave during a period of leave in connection with the birth, adoption, or foster care of a child, or to care for a child, parent, or spouse with a serious health condition, unless mutually agreed to by the employer and the employee.

Cal. Gov. Code 12945.2 (g)

During a family care and medical leave period, the employee shall retain employee status with the employer, and the leave shall not constitute a break in service, for purposes of longevity, seniority under any collective bargaining agreement, or any employee benefit plan. An employee returning from leave shall return with no less seniority than the employee had when the leave commenced, for purposes of layoff, recall, promotion, job assignment, and seniority-related benefits such as vacation.

Cal. Gov. Code 12945.2 (l)

It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following:

(1) An individual's exercise of the right to family care and medical leave provided by subdivision (a).

(2) An individual's giving information or testimony as to his or her own family care and medical leave, or another person's family care and medical leave, in any inquiry or proceeding related to rights guaranteed under this section.

Cal. Gov. Code 12945.2 (o)

The provisions of this section shall be construed as separate and distinct from those of Section 12945.

Cal. Gov. Code 12945.2 (p)

Leave provided for pursuant to this section may be taken in one or more periods. The 12-month period during which 12 workweeks of leave may be taken under this section shall run concurrently with the 12-month period under the FMLA, and shall commence the date leave taken under the FMLA commences.

Cal. Gov. Code 12945.2(q)

In any case in which both parents entitled to leave under subdivision (a) are employed by the same employer, the employer shall not be required to grant leave in connection with the birth, adoption, or foster care of a child that would allow the parents family care and medical leave totaling more than the amount specified in subdivision (a).

Cal. Gov. Code 12945.2(r)

(1) Notwithstanding subdivision (a), an employer may refuse to reinstate an employee returning from leave to the same or a comparable position if all of the following apply:

(A) The employee is a salaried employee who is among the highest paid 10 percent of the employer's employees who are employed within 75 miles of the worksite at which that employee is employed.

(B) The refusal is necessary to prevent substantial and grievous economic injury to the operations of the employer.

(C) The employer notifies the employee of the intent to refuse reinstatement at the time the employer determines the refusal is necessary under subparagraph (B).

(2) In any case in which the leave has already commenced, the employer shall give the employee a reasonable opportunity to return to work following the notice prescribed by subparagraph (C).

Cal. Gov. Code 12945.2(s)

Leave taken by an employee pursuant to this section shall run concurrently with leave taken pursuant to the FMLA, except for any leave taken under the FMLA for disability on account of pregnancy, childbirth, or related medical conditions. The aggregate amount of leave taken under this section or the FMLA, or both, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions, shall not exceed 12 workweeks in a 12-month period. An employee is entitled to take, in addition to the leave provided for under this section and the FMLA, the leave provided for in Section 12945, if the employee is otherwise qualified for that leave.

### APPENDIX B

Selected Sections of Federal Title VII

§ 2000e. Definitions (selected provisions)

42 U.S.C. § 2000e (a)

The term "person" includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under title 11, or receivers.

42 U.S.C. § 2000e (b)

The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person, but such term does not include

(1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined in section 2102 of title 5), or

(2) a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501 (c) of title 26, except that during the first year after March 24, 1972, persons having fewer than twenty-five employees (and their agents) shall not be considered employers.

42 U.S.C. § 2000e (f)

The term "employee" means an individual employed by an employer, except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision. With respect to employment in a foreign country, such term includes an individual who is a citizen of the United States.

42 U.S.C. § 2000e (k)

The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e–2 (h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion.

§ 2000e–2. Unlawful Employment Practices (selected provisions)

42 U.S.C. § 2000e-2 (a)

Employer practices

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

Endnotes of Citations

. Mogilefsky v. Superior Court (1993) 20 Cal. App. 4th 1409, 1414.

2. Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158, 1164.

3. Janken v. GM Hughes Electronics (1996) 46 Cal. App. 4th 55.

4. Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158, 1164 quoting Janken v. GM Hughes Electronics (1996) 46 Cal. App. 4th 55, 62-64.

5. California Code of Regulations, Title 2, § 7287.6 (b) (1).

6. Mogilefsky v. Superior Court (1993) 20 Cal. App. 4th 1409, 1414.

7. Id.

8. EEOC/Christopher v. National Education Association 422 F. 3d 840 (9th Cir. 2005).

9. Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1561-1563; see also Cal. Gov. Code §§12926 (m), (q); Cal. Gov. Code §12940 (a).

10. Burlington Northern & Santa Fe Railway Co. v. White (2006) 548 U.S. 53; 126 S. Ct. 2405, 2412-15.

11. Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 608-610; Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 278-279; Harris v. Forklift Systems (1993) 510 U.S. 17, 21.

2. Department of Fair Employment and Housing v. Nulton (Sept. 16, 2003) FEHC Dec. No. 03-10; Katz v. Dole (4th Cir. 1983) 709 F. 2d 251, 254.

3. Katz v. Dole (4th Cir. 1983) 709 F. 2d 251, 254.

4. Steiner v. Showboat Operating Co. (9th Cir. 1994) 25 F. 3d 1459, cited in Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 281; Burns v. McGregor Electronic Industries, Inc. (8th Cir. 1993) 989 F. 2d 959, 964-965; cited in Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 281.

5. Yates v. Avco Corp. (6th Cir. 1987) 819 F. 2d 630, 632; Henson v. City of Dundee (11th Cir. 1982) 682 F. 2d 897.

6. Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal. App. 4th 994, 1000-1002.

7. Andrews v. City of Philadelphia, (3rd Cir. 1990) 895 F. 2d 1469 1485; cited in Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 281-282.

8. Hall v. Gus Const. Co., Inc. (8th Cir. 1988) 842 F. 2d 1010, 1012.

9. Mogilefsky v. Superior Court (1993) 20 Cal. App. 4th 1409, 1414.

20. Meritor Savings Bank v. Vinson (1986) 477 U.S. 57.

2. Price Waterhouse v. Hopkins (1989) 490 U.S. 228.

22. Cal. Gov. Code §§ 12926 (p), 12945.

23. Phillips v. Marietta Corp. (1971) 400 U.S. 542, 544.

24. California Fair Employment and Housing Act (FEHA).

25. Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. The Civil Rights Act of 1991 (CRA) amended Title VII.

26. Cal. Gov. Code § 12930 (e)

27. Culligan Water Conditioning v. State Bd. Of Equalization (1976) 17 Cal. 3d 86, 93; Carmona v. Division of Industrial Safety (1975) 13 Cal. 3d. 303, 310.

28. California Constitution, Art. 1, § 8.

29. Burlington Northern & Santa Fe Railway Co. v. White (2006) 548 U.S. 53; 126 S. Ct. 2405, 2412-15.

30. Burlington Northern & Santa Fe Railway Co. v. White (2006) 548 U.S. 53; 126 S. Ct. 2405, 2412-15.

31. Mogilefsky v. Superior Court (1993) 20 Cal. App. 4th 1409, 1414.

32. Id.

33. California Judicial Council Jury Instruction (2006), CACI No. 2520.

34. Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal. App. 4th 976, 985-986.

35. Miller v. Dept of Corrections 36 Cal. 4th 446.

36. Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264.

37. Id.

38. Id. at 272.

39. Id. at 281-283

40. Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 283, quoting Oncale v. Sundowner Offshore Servs., Inc. (1998) 523 U.S. 75, 81-82.

41. Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 118 S. Ct. 998.

42. Accardi v. Superior Court (1993) 17 Cal. App. 4th 341; Fisher v. San Pedro Peninsula Hospital, (1989) 214 Cal. App. 3d 590.

43. EEOC/Christopher v. National Education Association 422 F. 3d 840 (9th Cir. 2005).

44. Garcia v. Los Banos Unified Sch. Dist. (2006) 418 F. Supp. 2d 1194.

45. Id. at 1222.

46. Id. at 12221-1222.

47. Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 608-610; Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 278-279; Harris v. Forklift Systems (1993) 510 U.S. 17, 21.

48. Downes v. F.A.A. (Fed. Cir. 1985) 775 F. 2d 288.

49. Mokler v. County of Orange 157 Cal. App. 4th 121.

50. Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 282-283.

51. Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264.

52. Dee v. Vintage Petroleum, Inc. (2003) 106 Cal. App. 4th 30, 36-37.

53. Brooks v. City of San Mateo (9th Cir. 2000) 229 F. 3d 917.

54. Id. at 927, fn. 9.

55. Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 284.

56. Downes v. F.A.A. (Fed. Cir. 1985) 775 F. 2d 288, 293.

57. Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 610.

58. Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 282 quoting Miller v. Dept of Corrections 36 Cal. 4th 446, 462, quoting Harris v. Forklift Systems (1993) 510 U.S. 17, 23.

59. Id. at 271.

60. Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 283 quoting Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-82.

61. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1036, 1054-1056.

62. Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 278, citing Miller v. Dept of Corrections 36 Cal. 4th 446, 463.

63. Meritor Savings Bank v. Vinson (1986) 477 U.S. 57.

64. Id. at 60.

65. Department of Fair Employment and Housing v. Nulton (Sept. 16, 2003) FEHC Dec. No. 03-10; cited in Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 281. Although Department of Fair Employment and Housing v. Nulton is not binding on California courts because it is an administrative decision, courts will give great weight to an administrative agency's interpretation of its own regulations and the statutes under which it operates; Culligan Water Conditioning v. State Bd. Of Equalization (1976) 17 Cal. 3d 86, 93; Carmona v. Division of Industrial Safety (1975) 13 Cal. 3d. 303, 310.

66. Id.

67. Steiner v. Showboat Operating Co. (9th Cir. 1994) 25 F. 3d 1459, cited in Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 281.

68. Id. at 1463-1464.

69. Id.

70. Burns v. McGregor Electronic Industries, Inc. (8th Cir. 1993) 989 F.2d 959, 964-965; cited in Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 281.

71. Andrews v. City of Philadelphia, (3rd Cir. 1990) 895 F. 2d 1469 1485; cited in Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 281-282.

72. Id.

73. Lispett v. University of Puerto Rico (1st Cir. 1988) 864 F.2d 881, 905; cited in Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 281.

74. Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal. App. 4th 994, 1000-1002.

75. Hirase-Doi v. U.S. West Communications, Inc., (10th Cir. 1995) 61 F. 3d 777.

76. Id. at p. 784, fn. 3, italics added.

77. Hall v. Gus Const. Co., Inc. (8th Cir. 1988) 842 F.2d 1010, 1012.

78. Broderick v. Ruder (D.D.C. 1988) 685 F. Supp 1269, 1277-78.

79. Id.

80. Yates v. Avco Corp. (6th Cir. 1987) 819 F. 2d 630, 632.

81. Henson v. City of Dundee (11th Cir. 1982) 682 F. 2d 897.

82. Bundy v. Jackson (DC Cir. 1981) 641 F.2d 934, 940, 943.

83. Id.

84. Katz v. Dole (4th Cir. 1983) 709 F. 2d 251, 254.

85. Mokler v. County of Orange 157 Cal. App. 4th 121.

86. Mokler v. County of Orange 157 Cal. App. 4th 121, 144.

87. Id. at 145.

88. Herberg v. California Inst. Of Arts (2002) 101 Cal. App. 4th 142, 151-152.

89. Herberg v. California Inst. Of Arts (2002) 101 Cal. App. 4th at 150, quoting Brooks v. City of San Mateo (9th Cir. 2000) 229 F. 3d 917, 923.

90. Bennett v. Corroon & Black Corp. (5th Cir. 1988) 845 F. 2d 104.

91. Herberg v. California Inst. Of Arts 101 Cal. App. 4th at 154, fn 12.

92. Herberg v. California Inst. Of Arts 101 Cal. App. 4th at 150.

93. Del Valle Fontanez v. Aponte (D.PR. 1987) 660 F. Supp. 145.

94. Id. at 146-147, 149.

95. Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264.

96. Downes v. F.A.A. (Fed. Cir. 1985) 775 F. 2d 288.

97. Jones v. Flagship Intern (5th Cir. 1986) 793 F. 2d 714, 716.

98. Rabidue v. Osceola Refining Co. (6th Cir. 1986) 805 F. 2d 611, 615, 622.

99. Scott v. Sears, Roebuck & Co. (7th Cir. 1986) 798 F. 2d 210, 214.

100. Downes v. F.A.A. (Fed. Cir. 1985) 775 F. 2d 288, 293.

101. Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264, 284.

02. Id.

03. Miller v. Dept of Corrections 36 Cal. 4th 446.

04. Oncale v. Sundowner Offshore Services (1998) 523 U.S. 75, 79.

05. Singleton v. United States Gypsum Co. (2006) 140 Cal. App. 4th 1547, 1561-1563.

06. Id.

07. Id.

08. Id.

09. Cal. Gov. Code § 12926 (p).

10. Price Waterhouse v. Hopkins (1989) 490 U.S. 228.

11. Phillips v. Marietta Corp. (1971) 400 U.S. 542, 544.

12. Cal. Gov. Code § 12940.

13. Cal. Gov. Code § 12926 (d).

14. Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000 e (2) (b).

15. Davis v. Team Electric Co. (9th Cir. 2008) 520 F. 3d 1080.

16. Davis v. Team Electric Co. (9th Cir. 2008) 520 F. 3d 1080, 1089.

17. McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.

18. Davis v. Team Electric Co. (9th Cir. 2008) 520 F. 3d 1080, 1089, citing Chuang v. Univ. of Cal. Davis (9th Cir. 2000) 225 F. 3d 1115, 1123-24 (quoting Tex. Dep't of Cmty. Affairs v. Burdine (1981) 450 U.S. 248).

19. Davis v. Team Electric Co. (9th Cir. 2008) 520 F. 3d 1080, 1089.

20. McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F. 3d 1103, 1112.

21. DFEH v. Church's Fried Chicken (1987) FEHC Dec. No. 87-18, at 10, 12.

22. Nesbit v. Pepsico (9th Cir. 1993) 994 F. 2d 703, 704.

23. Id.

24. Harvey v. Sybas, Inc. (April 18, 2008) No. A109300, citing Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2007) ¶ 7:488, p.7-82.

25. Harvey v. Sybas, Inc. (April 18, 2008) No. A109300, citing Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2007) ¶ 7:488, p.7-83.

26. Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal. App. 4th 798, 809, quoting Bradley v. Harcourt, Brace and Co. (9th Cir. 1996) 104 F. 3d 267, 270-271.

27. Harvey v. Sybas, Inc. (April 18, 2008) No. A109300

28. Cal. Gov. Code §§12926 (m), (q); see also Cal. Gov. Code §12940 (a).

29. Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158.

30. Cal. Gov. Code §§ 12926 (p), 12945.

31. Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000 e (k).

32. Auto Workers v. Johnson Controls (1991) 499 U.S. 187, 199.

33. Hall v. Nalco Company (July 16, 2008) No. 06-3684, available at: http://www.mmmglawblog.com/tp-080318191354/post-080718201626 /Hallv.NalcoCo.pdf.

34. Carr v. Barnabey's Hotel Corporation (1994) 23 Cal. App. 4th 14, 17.

35. Federal Family and Medical Leave Act of 1993 (FMLA), available at: http://www.dol.gov/esa/whd/fmla/.

36. California Pregnancy Disability Leave (PDL), part of California Fair Employment and Housing Act, Cal.Gov. Code § 12945.

37. California Family Rights Act (CFRA), Cal. Gov. Code § 12945.2; 2 Cal. Code Regs §§ 7297.0 (e), 7297.6 (c).

38. Federal Family and Medical Leave Act of 1993 (FMLA), Title 1, § 102, available at: http://www.dol.gov/esa/whd/fmla/.

39. Federal Family and Medical Leave Act of 1993 (FMLA), Title 1, § 101, available at: http://www.dol.gov/esa/whd/fmla/.

40. Federal Family and Medical Leave Act of 1993 (FMLA), Title 1, § 104, available at: http://www.dol.gov/esa/whd/fmla/.

41. Id.

42. Id.

43. 2 Cal. Code Regs. § 7291.7.

44. 2 Cal. Code Regs. § 7291.2.

45. 2 Cal. Code Regs. § 7291.6.

46. 2 Cal. Code Regs. § 7291.8.

47. 2 Cal. Code Regs. § 7291.10.

48. 2 Cal. Code Regs. § 7291.2 (d).

49. CFRA, Cal. Gov. Code § 12945.2 (a).

50. CFRA, Cal. Gov. Code §§ 12945.1, 12945.2.

51. 2 Cal. Code Regs. § 7291.13.

52. Spaziano v. Lucky Stores, Inc. (1999) 69 Cal. App. 4th 106.

53. 2 Cal. Code Regs. § 7291.9 (d).

54. Spaziano v. Lucky Stores, Inc. (1999) 69 Cal. App. 4th 106.

55. State Dept. of Health Servs. v. Superior Court (2003) 31 Cal. 4th 1026.

56. Id. at 1045.

57. Judicial Council of California Civil Jury Instructions (2006), CACI No. 2521A Hostile Work Environment Harassment, Element 2: "That [plaintiff] was subjected to unwanted harassing conduct..." [Emphasis added.]; Judicial Council of California Civil Jury Instructions (2006), CACI No. 2520(2): "That [alleged harasser] made unwanted sexual advances to [plaintiff] or engaged in other unwanted verbal or physical conduct of a sexual nature..." [Emphasis added.].

58. Meritor Savings Bank, FSB v. Vinson (1986) 477 U.S. 57.

59. Id.

60. Id. at 68-69.

61. Janken v. GM Hughes Electronics (1996) 46 Cal. App. 4th 55, 71-72.

62. Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e (b).

63. See Cal. Gov. Code §§ 12940(j), (k).

64. See Cal. Gov. Code § 12950.

65. Id.

66. Trujillo v. North County Transit Dist. (1998) 63 Cal. App. 4th 280, 286-289.

67. See 29 Code Fed. Reg. § 1604.11 (f).

68. Ellison v. Brady (9th Cir. 1991) 924 F. 2d 872, 882.

69. Intlekofer v. Turnage (9th Cir. 1992) 973 F. 2d 773, 777.

70. Id. at 778-779.

71. Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal. App. 4th 1612.

72. Id. at 1633.

73. Id. at 1634.

74. Cal. Gov. Code §12940 (j) (1).

75. State Department of Health Services v. Superior Court (McGinnis) (2003) 31 Cal. 4th 1026, 1041.

76. State Dept. of Health Servs. v. Superior Court (2003) 31 Cal. 4th 1026, 1042, citing Daly v. General Motors Corporation (1978) 20 Cal. 3d 725, 733.

77. State Dept. of Health Servs. v. Superior Court (2003) 31 Cal. 4th 1026, 1049.

78. Cal. Gov. Code §12940 (j) (1).

79. Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 765; Faragher v. City of Boca Raton (1998) 524 U.S. 775, 807.

80. 29 Code Fed. Reg. §§ 1604.11 (d), 1606.8 (d); Freitag v. Ayers (9th Cir. 2006) 468 F. 3d 528, 538-539; Folkerson v. Circus Circus Enterprises (9th Cir. 1997) 107 F. 3d 754, 756.

81. Cal. Gov. Code § 12940 (j) (1); 2 Cal. Code Reg. § 7287.6 (b) (3); Carte v. California Dept. of Veteran Affairs (2006) 38 Cal. 4th 914.

82. Cal. Gov. Code § 12940 (j) (1).

83. 29 Code Fed. Reg. § 1604.11(e):

An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.

84. Cal. Gov. Code § 12940 (j) (1).

85. Cal. Gov. Code § 12940 (j) (1); 29 Code Fed. Regs. § 1604.11(e).

86. Freitag v. Ayers (9th Cir. 2006) 468 F. 3d 528, 538-539.

87. Folkerson v. Circus Circus Enterprises (9th Cir. 1997) 107 F. 3d 754, 756.

88. Freitag v. Ayers (9th Cir. 2006) 468 F. 3d 528, 538-539.

89. Freitag v. Ayers (9th Cir. 2006) 468 F. 3d 528, citing Folkerson v. Circus Circus Enterprises (9th Cir. 1997) 107 F. 3d 754, 756.

90. Lyle v. Warner Bros. Television Prods. (2006) 38 Cal. 4th 264.

91. Id. at 272.

92. Id. at 271.

93. Miller v. Maxwell's Int'l (9th Cir. 1993) 991 F.2d 583, 587-588, cert. denied, 510 U.S. 1109.

94. Cal. Gov. Code § 12940 (j) (3).

95. Cal. Gov. Code § 12940 (i).

96. Matthews v. Superior Court (1995) 34 Cal. App. 4th 598.

97. Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158.

98. Cal. Gov. Code § 12940 (h).

99. EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice Number 915.002 (1999), available at: http://www.eeoc.gov/policy/docs/harassment.html.

200. Cal. Gov. Code § 12926 (r).

20. Chapman v. Enos, (2004) 116 Cal. App. 4th 920, 928-931.

202. Id. at 929-930.

203. Capitol City Foods v. Superior Court (1992) 5 Cal. App. 4th 1042, 1047-1050.

204. State Department of Health Services v. Superior Court (McGinnis) (2003) 31 Cal. 4th 1026, 1041.

205. Myers v. Trendwest Resorts, Inc. (2007) 148 Cal. App. 4th 1403.

206. Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal. App. 4th 1612.

207. Id. at 1634.

208. Id.

209. Janken v. GM Hughes Electronics (1996) 46 Cal. App. 4th 55, 66. FEHA does not impose personal liability on individual supervisors for age discrimination in making personnel management decisions that are necessary to job performance. Supervisors are individually liable for harassment.

210. Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158.

21. Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158.

212. Id. at 1183, fn 4.

213. Judicial Council of California Civil Jury Instructions (2006), CACI No. 2526.

214. State Department of Health Services v. Superior Court (McGinnis) (2003) 31 Cal. 4th 1026.

215. Id. at 1045.

216. State Department of Health Services v. Superior Court (McGinnis) (2003) 31 Cal. 4th 1026, 1045, citing Green v. Smith (1968) 261 Cal. App. 2d 392, 396.

217. Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742; Faragher v. City of Boca Raton (1998) 524 U.S. 775.

218. Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742.

219. Faragher v. City of Boca Raton (1998) 524 U.S. 775.

220. Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742.

221. Cal. Civ. Code § 3294 (b).

222. Id.

223. Kolstad v. American Dental Ass'n (1999) 527 U.S. 526, 545.

224. Judicial Council of California, Civil Jury Instructions (2007), CACI No. 2505.

225. Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-3 (a).

226. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028.

227. Id. at 1036.

228. Id. at 1055.

229. Id. at 1044.

230. Id. at 1035.

231. Id. at 1052.

232. Id. at 1053-1055.

233. Burlington Northern & Santa Fe Railway Co. v. White (2006) 548 U.S. 53; 126 S. Ct. 2405, 2412-15.

234. Id.

235. Id.

236. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028.

237. Id. at 1046.

238. Id. at 1046.

239. Wirtz v. Kansas Farm Bureau Services, Inc. (D. Kan. 2003) 274 F. Supp. 2d 1198.

240. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1047, quoting Wirtz v. Kansas Farm Bureau Services, Inc. (D. Kan. 2003) 274 F. Supp. 2d 1198, 1212.

241. Judicial Council of California Civil Jury Instructions (2006), CACI No. 1600.

242. Judicial Council of California Civil Jury Instructions (2006), CACI No. 1602.

243. Id.

244. Judicial Council of California Civil Jury Verdict Form Number 2505, Quid Pro Quo Sexual Harassment (2006).

245. Cal. Lab. Code, § 3601 (a).

246. Accardi v. Superior Court, (1993) 17 Cal. App. 4th 341, 352-353.

247. Accardi v. Superior Court, (1993) 17 Cal. App. 4th 341, 352.

248. Accardi v. Superior Court, (1993) 17 Cal. App. 4th 341, 352-353, citing Gantt v. Sentry Insurance (1992) 1 Cal. 4th 1083, 1100.

249. Judicial Council of California Civil Jury Instructions (2006), CACI No. 1620.

250. Id.

251. Id.

252. Cal. Gov. Code § 12963.

253. Cal. Gov. Code § 12965.

254. Cal. Gov. Code § 12965 (c) (1).

255. Available at http://www.dfeh.ca.gov.

256. Cal. Gov. Code § 12960 (b).

257. Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724.

258. Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724, citing Rojo v. Kliger (1990) 52 Cal. 3d 65, 88; Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal. 3d 211, 213-214; Denney v. Universal City Studios, Inc. (1992) 10 Cal. App. 4th 1226, 1232; Yurick v. Superior Court (1989) 209 Cal. App. 3d 1116, 1121; Miller v. United Airlines, Inc. (1984) 174 Cal. App. 3d 878, 890.

259. Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724, citing Yurick v. Superior Court (1989) 209 Cal. App. 3d 1116, 1121-1123.

260. Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724, citing Miller v. United Airlines, Inc. (1984) 174 Cal. App. 3d 878, 890.

261. Garcia v. Los Banos Unified Sch. Dist. (2006) 418 F. Supp. 2d 1194.

262. Deering's Government Code Annotated, 2008 Pocket Supplement, §12960, p. 184.

263. Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718.

264. Federal Express Corporation v. Holowecki (February 27, 2008) No. 06-1322; 128 S. Ct. 1147.

265. Cal. Gov. Code §12960.

266. Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-5 (e) (1).

267. Regents of University of California v. Superior Court (1995) 33 Cal. App. 4th 1710, 1718-1720.

268. Accardi v. Superior Court, (1993) 17 Cal. App. 4th 341, 348-351.

269. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028.

270. Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83.

271. Mitri v. Arnel Management Co. (2007) 157 Cal. App. 4th 1164.

272. Romo v. Y-3 Holdings, Inc. (2001) 87 Cal. App. 4th 1153, 1158-1159.

