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A state appeal court ruled Monday that employers are not liable for sexual harassment committed against employees by clients and customers. But Second District Court of Appeal Justice Joan Klein said the majority got it wrong, and told them why in a hopping mad 33-page concurring and dissenting opinion. “An employer is not powerless to control its place of business,” she wrote. “For example, restaurants routinely display signs stating ‘No shirts, no shoes, no service.’ “An employer is equally capable of refusing service,” she continued, “to a client or customer who sexually harasses an employee, or otherwise acting to protect an aggrieved employee from further harassment.” In Salazar v. Diversified Paratransit Inc., B142840, Raquel Salazar sued her company, which transports developmentally disabled adults and children from homes to care providers, after she was assaulted in 1997 by one of the company’s adult male clients, whose genitals were exposed at the time. Salazar claimed that the California Fair Employment and Housing Act created employer liability for employees sexually harassed by clients. After a jury trial, however, Los Angeles County Superior Court Judge Jean Matusinka granted Diversified Paratransit a non-suit, and on Monday L.A.’s Second District Court of Appeal affirmed in a 2-1 vote. In a 43-page majority ruling heavy on interpretation of legislative intent, Justice Patti Kitching declared that the FEHA gives Salazar no cause of action. “The Legislature rejected an amendment,” she wrote, “that would have expanded statutory employer liability in this way, and this court defers to that legislative policy determination.” Justice Richard Aldrich concurred. Justice Klein, however, rejected the majority’s argument, saying that the Legislature, indeed, had amended the FEHA in 1984 by declaring — in the preamble — that employers had to protect employees from sexual harassment by clientele. “This preamble to the 1984 legislation is uncodified,” Klein wrote. “However, said statute, which has been on the books for nearly two decades and specifically refers to the protection of employees from an employer’s clientele, is to be given no less weight than the provisions which are codified.” Klein also wrote that it is “rudimentary” that an employee has a right to a work environment free of sexual harassment and that an employer must protect employees from a hostile work environment. “Under the lead opinion’s interpretation,” she continued, “the FEHA affords no protection to a waitress who repeatedly is groped by a customer and who reports the harassment to her employer, no matter how egregious the harassment.” The state attorney general’s office filed an amicus curiae brief in support of the plaintiff’s interpretation, as did the California Employment Lawyers Association. The employer drew support from the California Manufacturers and Technology Association.

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