Taking the Employee’s Side – An Employment Attorney’s Perspective

All of the feature articles in the September issue of the Contra Costa Lawyer relate to the fact pattern for this issue. Read it here. 

Veronica’s best friend Blanch said, “I have your back,” but it appears for years Blanch has neglected her managerial duties and her negligence is attributable to Family Co. Discovery should reveal Family Co.’s sexual harassment/domestic violence training and policies, but most likely Blanch failed to follow any which might have prevented or minimized Veronica’s (and co-workers’) suffering from Albert’s behavior.

The doctor put Veronica on disability/serious health condition leave as a reasonable accommodation, but now that leave is ending without Family Co. communicating whether it had approved the leave and is protecting Veronica’s job and healthcare benefits. She should get this verified in writing.

Because Veronica is not ready to return to work, she should talk to her doctor about extending her leave, so she has more time to recover and act to protect her employment rights and workplace safety. During her leave, she needs to keep Family Co. apprised and provide her doctor’s certification.

While understandably difficult, Veronica should report Albert to the police and seek a restraining order against him. A domestic violence clinic should help with this. It may or may not be worth pursuing civil legal action against Albert for domestic violence/sexual harassment, etc., but there are options against Family Co.

Family Co.’s Possible Liability

Possible factual challenges with claims against Family Co. include the fact that:

1. Albert is Veronica’s ex-husband;
2. Albert is not a Family Co. employee;
3. Blanch is both Veronica’s boss and best friend;
4. Albert sent his objectionable emails and texts via his Vendor Co. (work) email and cell phone;
5. Albert’s harassment began about a year beyond the one year look-back for sexual harassment;
6. Albert’s June 6th attack was after work and possibly off-site

Nevertheless, a solid legal basis for a hostile environment sexual harassment claim against Family Co. exists, and possibly another against Vendor Co. My advice would be obtaining a right to sue letter from the Department of Fair Employment and Housing for sexual harassment, failure to prevent sexual harassment, sex discrimination and retaliation against Family Co. and going after Vendor Co. for sexual harassment and Ralph Act Hate Violence.

The next step would be demand letters to the employers, but most likely Veronica would need to file lawsuits against them, unless Family Co. is so strongly motivated to avoid publicly embarrassing Blanch, its founder’s daughter, that it agrees to settle. Realistically, Family Co. will require Veronica to resign.

The Case Against Family Co. for Albert’s Hostile Environment Sexual Harassment

The California Fair Employment and Housing Act (FEHA) requires employers of any size to provide a workplace environment free from harassment because of one’s sex or gender. An employer is responsible for non-employees’ sexual harassment of its employees “…if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.[1]

The facts show that sometime in 2016 Albert’s sexually charged behavior turned Family Co. into a sexually hostile environment for Veronica. His behavior was:

1. Unwanted and unwelcomed by Veronica;
2. Physical and verbal;
3. Sex-based and/or of a sexual nature;
4. Included requests for sex; and
5. offensive.[2]

Albert using Vendor Co. accounts for his barrage of emails and texts does not relieve Family Co. of responsibility for third party harassment of Veronica, which it knew or should have known about and failed to timely correct.[3] Plus, at least the emails and maybe the texts landed in Veronica’s Family Co. inbox.

Sexual harassment is more than politically incorrect behavior; it must be sufficiently severe or pervasive to alter the terms or conditions of employment. Unless it is extreme, one incident is typically not enough.

The “totality of the circumstances” of each case is crucial, but courts have found physical groping enough.[4] Here, since 2016, Albert engaged in a great deal of unwelcome physical groping.

Any one of Albert’s “trap, slam and grope” incidents could be “severe.” Combined, they are not only well beyond “severe or pervasive,” they are severe and pervasive.
Because Albert is at Family Co. nearly every day, hanging out near Veronica’s desk, constantly asking her out, trapping her alone, hugging, kissing, grabbing her buttocks, slamming his penis into her backside, tripping her, verbalizing his sexual fantasies about her, in person or in email and text messages, it seems irrefutable that even before his June 6th assault, he interfered with the terms and conditions of her employment.

Given Albert’s constant bad behavior, it is very unlikely Blanch was unaware of it, even before Veronica reported it in 2018. By failing to take immediate, appropriate corrective action back in 2016 and certainly in February 2018, Blanch connected Family Co. to Albert’s sexual harassment.

Possible Family Co. Defenses

Family Co. may raise the defense of statute of limitations, arguing Albert’s behavior stabilized in 2016 (in an effort to argue that the FEHA’s one year look-back period ran out in 2017). However, since Albert’s behavior is becoming increasingly more violent and there is plenty of bad behavior happening in 2018, this is a weak argument. Albert’s harassment is a continuing violation and the 2016 behavior is part of it.[5]
Albert’s violence should satisfy both the objective standard of what a reasonable woman in Veronica’s position at Family Co. would find hostile or abusive and the subjective standard of how hostile or abusive Veronica found it. Since the abuse was so blatant and constant, Family Co. may face sexual harassment claims from Veronica’s co-workers as well.

Albert’s June 6th After Work, Off-Site Attack

Standing alone, Albert’s June 6th physical attack was sufficient sexual harassment: he stalked Veronica, followed her to her parked car after work, then pushed her against the car, choked and sexually touched her until a Family Co. employee pulled him off her. She feared being raped and was injured. If her car was parked on Family Co. property, it is easier to tie Family Co. to the attack, but employers can be also be liable for after work, work-related off-site sexual harassment. If the rescuing Family Co. employee was a supervisor, that employee had a duty to report the attack, even without Veronica’s consent. Blanch definitely had that obligation since she met Veronica at the urgent care clinic, saw the extent of her injuries, yet again failed to take immediate and appropriate corrective action.

Worker’s Compensation Preemption

FEHA claims are exempt from Worker’s Compensation preemption. If Veronica pursues a Worker’s Compensation claim, she should be sure any settlement release excludes her sexual harassment claims.

Conclusion

Veronica has options here, but she needs good advice on how to protect them. Anyone in her position is advised to seek counsel on how to protect their rights in their specific circumstances.

[1] Gov. Code §12940(j)(1).
[2] Elements are set out in 2 Cal. Code Regs. §11019(b)(1).
[3] Gov. Code §12940(j)(1).
[4] Herberg v. California Institute of the Arts (2002) 101 Cal. App. 4th142,150-153.
[5] Richards v. CH2M Hill, Inc.(2001) 26 Cal.4th 798.