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The California Supreme Court unanimously agreed Wednesday to determine whether employers must protect their employees from harassment by clients and customers. Justices will review a sexual harassment case filed by a woman who was attacked by one of her company’s patrons. In petitioning for review, Susan Lovelace, a partner in Long Beach’s Wiezorek, Rice & Lovelace, called the issue one of “critical importance” to all Californians. “Virtually every California employer has clients or customers who may come in frequent contact with employees of the employer,” she wrote. “If those employees cannot demand that their employers be required to provide them with at least minimal protection against foreseeable and preventable sexual assault or harassment, countless unnecessary assaults will occur.” Lovelace represents Raquel Salazar, who sued her employer, Diversified Paratransit Inc., after being assaulted in 1997 by a male client who was exposing himself at the time. Salazar was a driver for the company, which transports mentally disabled adults and children from their homes to care providers. In her suit, Salazar argued that the California Fair Employment and Housing Act created employer liability for employees who are sexually harassed by clients. Los Angeles County Superior Court Judge Jean Matusinka threw the suit out, and L.A.’s Second District Court of Appeal affirmed in a 2-1 ruling on Oct. 28. Justice Joan Dempsey Klein issued an unusually gruff concurring and dissenting opinion, arguing vehemently that the state Legislature intended employers to be liable to their employees for sexual harassment by customers. “Under the lead opinion’s interpretation,” she wrote, “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.” Lovelace referred to Klein’s “vociferous dissent” in asking the high court to review the decision, which she argued would erode the concept of a harassment-free workplace if allowed to stand. “That decision has improperly created a wide exception that will swallow much of the protective force of the FEHA,” Lovelace wrote, “ and will subject employees throughout California to the very real danger of harassment, which their employers will have no legal incentive to prevent.” Michael Martin, who was one of Diversified Paratransit’s trial attorneys, said Wednesday that he and others at his firm were hoping the case would have been resolved by the Second District ruling. He said he continues to believe strongly that Salazar has no case under California law. “The Legislature was very clear in not including third persons or clients [as] being the responsibility of an employer for harassment,” Martin, a senior associate at Riverside’s Graves & King, said. “We’re still reviewing what we think the Supreme Court has in mind since the granting of the petition is without limitation,” he added. “It’s too early for us to have any substantive comment or know what direction the Supreme Court is going to take.” The case is Salazar v. Diversified Paratransit, S111876.

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