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The California Supreme Court has granted review in a number of pending sexual harassment and sex discrimination cases that could shape the law in significant ways. Two of these cases involve the interpretation of California’s sexual harassment statute in the context of case law that has developed under Title VII of the Civil Rights Act of 1964. State Department of Health Services v. Superior Court ( Theresa McGinnis, Real Party in Interest), S103487, on which the Supreme Court will hear oral argument Sept. 3, concerns whether employers are strictly liable when a supervisor sexually harasses an employee. Salazar v. Diversified Paratransit, Inc., S111876, concerns whether an employer is liable when a customer or client sexually harasses an employee. The California Fair Employment and Housing Act provides that it is unlawful “for an employer � or any other person, because of � sex � to harass an employee. � Harassment � by an employee other than an agent or supervisor shall be unlawful if the entity � knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” Cal. Gov. Code � 12940(j)(1). Unfortunately, this language is not as crystal clear as hindsight would desire. Few laws are. On the issue of liability for supervisor harassment, for decades now, practitioners, commentators and courts have assumed that FEHA provides for strict liability for supervisor harassment, reasoning that the language “harassment of an employee � by an employee other than an agent or supervisor shall be unlawful if the entity � knows or should have known of this conduct” must mean that an employer is liable for harassment by a supervisor regardless of whether it knows or should have known of the supervisor’s conduct. Why else would FEHA make a distinction between liability for harassment by employees “other than an agent or supervisor”? Similarly, practitioners and commentators have assumed that FEHA, like Title VII, covers harassment by customers. So why the fuss, and why now? The reason that liability for supervisor harassment is being litigated now is due to two 1998 U.S. Supreme Court decisions that drastically changed the liability standard under Title VII. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, and Faragher v. City of Boca Raton, 524 U.S. 775, the U.S. Supreme Court held that an employer is strictly liable for supervisor harassment that results in an adverse employment action, such as demotion or termination. If there is no adverse employment action, the employer is not liable if it can prove that it had a policy and procedure for remedying harassment and the plaintiff never complained. These decisions gave employers in California an opening to argue that California law should follow federal law on this issue. So when should FEHA follow Title VII? Generally, courts should look to Title VII cases when interpreting FEHA cases only when the two laws are analogous. Although both FEHA and Title VII prohibit employment discrimination and have the same broad goals and remedial purposes, the actual language of the statutes differs from each other. Title VII does not contain any specific prohibition of harassment, based on sex or otherwise. FEHA, on the other hand, contains extensive language prohibiting sexual harassment, reflecting the Legislature’s intent to provide employees in California with greater protections than under federal law. Does this mean courts should never refer to Title VII when analyzing sexual harassment law under FEHA? No, reference to Title VII cases is sometimes helpful in analyzing sexual harassment issues under FEHA, particularly where few reported decisions under FEHA exist. However, reliance on Title VII cases is inappropriate where FEHA provides more protection to employees than Title VII. McGinnis illustrates this point. Theresa McGinnis complained to her employer that her supervisor had been sexually harassing her for two years. Her employer investigated and concluded that the supervisor had violated its sexual harassment policy. The supervisor retired. McGinnis filed a lawsuit against her supervisor and her employer alleging sexual harassment under FEHA. The Third District Court of Appeal refused to follow Title VII law, correctly holding that the Ellerth/Faragher standard of liability did not apply in FEHA cases because FEHA contains more generous language on this issue. Salazar presents a situation where it is helpful to refer to Title VII cases because there have been no reported cases concerning employer liability for customer harassment under FEHA. In Salazar, Raquel Salazar worked as a bus driver transporting disabled people. Before assigning her the route that customer Ernest Rocha used, her employer had received three complaints from female drivers that Rocha had exposed himself to them. It therefore should have come as no surprise when Rocha began sexually harassing Salazar. Although she complained and requested a different route, her employer failed to take any action. Salazar resigned and filed a suit under FEHA. Against the overwhelming majority of federal cases interpreting Title VII, which have held employers liable for customer sexual harassment of employees, the Second District Court of Appeal held that FEHA does not cover customer harassment. Here, the California Supreme Court should resolve this issue in favor of holding employers liable based on the plain language of FEHA, that it is an unlawful employment practice “for an employer � or any other person, because of � sex � to harass an employee.” This means illegal harassment may be perpetrated by any individual, regardless of the harasser’s status as an employee, client, customer or other third party. Holding an employer responsible for the conduct of non-employees under its control is particularly important these days when workplaces often include nonstandard workers, such as independent contractors and leased employees, some of whom even have supervisory authority. Additionally, the Legislature has stated in unmistakably clear terms that it intended that FEHA cover harassment of employees at the hands of “non-supervisors and clientele.” Finally, it would be an anomalous result for employees to be protected from customer sexual harassment under federal law but not under California’s more generous FEHA. What at first may appear to be inconsistent positions — in McGinnis, I argue that FEHA should not adopt the Title VII standard, while in Salazar I believe FEHA, like Title VII, covers harassment of employees by customers or clients — are not. Interpretation of FEHA’s sexual harassment provisions in relation to Title VII is not an all or nothing game. The California Legislature intended FEHA to follow federal sexual harassment law in many respects, but carved out some areas where they intended FEHA to be more favorable. Doris Y. Ng is a visiting professor and supervising clinical attorney of the Women’s Employment Rights Clinic at Golden Gate University School of Law.

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