In many workplace harassment cases, it is often difficult to gather evidence or produce witnesses to testify regarding instances of harassment for a number of reasons. Often, the harassing conduct may take place in private and is undocumented. Where the offending conduct is witnessed by others, social pressure and fear of retaliation for testifying against an employer exacerbate the challenges in obtaining evidence. The difficulty in obtaining evidence can make it challenging for a plaintiff to prove the harassing conduct was “severe or pervasive.” In upholding a $500,000 jury verdict, the Fourth District Court of Appeals (“Fourth DCA”) recently provided further guidance on what evidence is sufficient to constitute severe and pervasive and actionable harassing conduct.[i]
I. What Constitutes Harassing Conduct in the Workplace
Under the Fair Employment and Housing Act (“FEHA”) an employee with a disability may sue his or her employer and/or supervisor for harassment in the workplace.[ii] Harassing conduct may include, among other types of conduct: verbal harassment, such as obscene language, demeaning comments, slurs or threats.” [iii] In Caldera v. California Department of Corrections and Rehabilitation (“CDCR”), the Fourth DCA added “mocking and mimicking” another employee’s disability, stuttering, to the list of harassing conduct. In most harassment cases, however, proving the offending conduct was in fact harassing as set forth above is not always at issue, and in some instances conceded by defendant. In the typical case, the employer takes the position that the harassing conduct does not rise to the level of severe or pervasive conduct.
Where an employee is subject to harassing conduct, California law requires employers to take all reasonable steps necessary to prevent . . . [the] harassment from occurring.”[iv] In order to establish a claim for failure to prevent harassment against an employer, plaintiff must prove three essential elements: 1) plaintiff was subjected to harassment; 2) the employer failed to take all reasonable steps to prevent harassment; and 3) this failure caused plaintiff to suffer injury, damage, loss or harm.[v] However, there can be no claim for failure to prevent harassment where plaintiff has failed to show actionable harassment has in fact occurred.[vi] As such, a determination of whether harassing conduct is sufficiently severe or pervasive is of utmost importance in harassment cases. The determination of whether offending conduct is severe or pervasive is ordinarily one of fact.[vii]
Analysis of Prior Case Law- Severe and Pervasive Conduct
Prior case law shows the standard for proving whether harassing conduct amounts to severe or pervasive conduct is ambiguous. Indeed, courts have held, incidents of harassing conduct over a short period of time may constitute severe or pervasive harassment.[viii] In every case, a jury is to consider the totality of the circumstances in determining whether the alleged conduct is sufficiently severe or pervasive.[ix] This by itself, however, provides little guidance as to what conduct may amount to actionable “harassing conduct.” Attempts to clarify what constitutes severe and pervasive conduct have in fact raised more questions, as shown by the sample of relevant cases below.
Indeed, in Fuentes, plaintiff had worked as a part-time cashier for approximately three weeks. During that time her manager had: 1) spread rumors she had a sexually transmitted disease and was sleeping with a co-worker; 2) insinuated she would make more money as a stripper or bikini model; 3) forced her to turn around and show her buttocks to customers who subsequently requested the same upon return to the store; and 4) informed plaintiff they would be rich if they owned the store and she showed her buttocks to customers.[x] The Court held such harassing conduct in isolation over a three week period to be “offensive” and that a reasonable person would share that perception.[xi] In doing so, the Court suggested the standard of severe and pervasive conduct to be an objective standard of whether the harassing conduct was merely offensive.
In Hughes v. Pair, the California Supreme Court held several sexual comments made in isolation were not sufficient to amount to severe or pervasive conduct.[xii] The defendant in Hughes made several sexually suggestive comments to plaintiff over a telephone call. Later that evening, defendant told plaintiff “I’ll get you on your knees eventually. I’m going to f*** you one way or another.” It is hard to believe a reasonable person would not find such comments to be offensive under the rational in the Fuentes case. However, the Supreme Court went on to explain an isolated incident of harassing conduct made in the presence of others may qualify as severe where it amounts to a physical assault or threat of assault.[xiii] The Supreme ourt was not presented with such evidence and therefore ruled the offending conduct was not sufficiently severe or pervasive to be actionable.
In Brennan v. Townsend & O’Leary Enterprises, Inc., the Court held three comments over several years which were not directed towards plaintiff or made in her presence to be insufficient to rise to severe or pervasive conduct.[xiv] Plaintiff in Brennan alleged she witnessed three incidents of gender-based conduct involving other female co-workers over several years. Plaintiff further received an email, inadvertently, which referred to her as “big-titted” and “mindless.”[xv] The jury found such conduct to be severe and pervasive and returned a verdict in plaintiff’s favor. In overturning the jury verdict, however, the Court explained plaintiff was never subjected to explicit language, verbal abuse or harassment and therefore no reasonable person could find such conduct to amount to severe or pervasive conduct.[xvi]
Principles to Consider- Severe and Pervasive Conduct
While such case law does not provide clear direction, it does set forth some guiding principles on what might be sufficient to constitute severe and pervasive conduct, as set forth below:
- Harassing conduct which can objectively be construed as “offensive” may give rise to severe and/or pervasive conduct where it is persistent and continues over an extended period of time –potentially three weeks or more;
- Harassing conduct isolated to one day, may rise to the level of severe and pervasive conduct if it poses a threat of physical assault on an employee;
- Harassing conduct not directed at an employee or made in their presence may not rise to severe or pervasive conduct; and
- Several instances of harassing conduct over a several year period may give rise to severe and pervasive conduct, but only where it is directly targeted at the employee.
The recent case of Caldera v. CDCR appears to follow the first and forth principles, above, in upholding the $500,000 jury verdict.
II. Caldera v. CDCR
Plaintiff Caldera filed a complaint alleging various causes of action against the CDCR and co-worker Sergeant Grove alleging causes of action for disability harassment, failure to prevent harassment and retaliation, amongst others. The trial court granted defendants’ motion for summary judgment, which was reversed on appeal.[xvii]
The matter went to trial were the jury returned verdict in plaintiff’s favor in the amount of $500,000. The jury’s special verdict found, among other issues: 1) Caldera was subject to unwanted harassing conduct; 2) the harassment was severe; 3) the harassment was pervasive; and 4) the CDCR failed to take all reasonable steps to prevent harassment. The jury, however, did not find Caldera had been subjected to adverse employment actions.
Defendants moved for a new trial on several grounds, including excessive award of damages. The trial court granted defendants motion solely on the issue of damages. Thereafter, defendants appealed the trial courts order regarding sufficiency of the evidence and instructional error. Caldera cross-appealed as to the trial court’s order granting a new trial.
Caldera starting working at the CDCR in 1994. At some point between 2006 and 2008 while working in the Ad Seg unit, Sergeant Grove began mimicking and mocking Caldera’s stutter. Notably, Caldera did not document any of the incidents. However, Grove had always mimicked Caldera in front of other employees. On one particular occasion, date unknown, Sergeant Grove mimicked Caldera over the prison’s radio system which was heard by 50 employees. Employees who saw Caldera’s response described him as being in shock and saddened.
In 2008, Victor Jordan, M.D. worked as a psychologist supervisor in Ad Seg unit. Dr. Jordon testified that he had personally heard prison employees mimic or mock Caldera on at least 12 other occasions. He explained there was a culture of joking about Caldera’s stutter. Caldera’s reactions to the conduct varied. At times he would laugh, sometimes he would defend himself and other time he would appear embarrassed by the conduct. During a shift change in September 2008, Caldera said something to Sergeant Grove who responded “F-f-f-f**k you.” Caldera threatened to file a complaint to which Sergeant Grove responded “I don’t give a F-f-f. Make sure you get my name right.” Thereafter, Caldera filed his formal complaint.
Sufficiency of the Evidence Holding
The Fourth DCA held mocking and mimicking a person with a disability can constitute actionable harassing conduct if it is severe or pervasive. In this regard, the Fourth DCA held the jury was reasonable in finding Caldera was subjected to severe and pervasive harassing conduct. In so holding the Fourth DCA took a three-tier approach:
- Offensive Conduct:
While offensive conduct has not in every situation amounted to the severe and pervasive conduct, the Fourth DCA likened the facts of this case to the Fuentes case. Notably, the Fourth DCA opined a reasonable person in Caldera’s position would find such conduct, discussed above, to be “offensive.”
- Severe Conduct:
The Fourth DCA held a reasonable jury could find the harassing conduct to be severe. In so holding the Fourth DCA noted that Caldera described such conduct as “demeaning, embarrassing, harmful and hurtful.” Every time Sergeant Grove mocked or mimicked Caldera it was in front of employees and on several occasions in front of a 24 to 50 employees. Further, the testimony of Dr. Jordon showed Caldera suffered emotion disorders as a result of the harassing conduct. Based on these facts, the Fourth DCA held a jury could find the harassing conduct to be severe. While the analysis is helpful, one must wonder if the Fourth DCA provided a road map for alleging and proving such claims where there is no documented evidence.
- Pervasive Conduct:
In finding the harassing conduct to be pervasive, the Fourth DCA focused on evidence showing Caldera was subjected to harassing conduct anywhere from 5 to 15 times over a two-year period. Of those incidences, Dr. Jordon was present for at least 12 occasions. There was further testimony by Dr. Jordon that there was a culture of mocking and mimicking Caldera at the CDCR. Based on this evidence the Fourth DCA believed the offending conduct to be greater than in Fuentes. As such, there was sufficient evidence upon which a jury could find the harassing conduct to be pervasive.
Failure to Prevent Harassing Conduct Holding
Because the Fourth DCA held there was sufficient evidence for a jury to find the harassing conduct to be both sever and harassing, it dismissed CDCR’s argument it did not have a duty to prevent such conduct. The CDCR further argued it maintained anti-harassment policies and procedure and provided annual training on those policies. In fact, on September 9, 2008, Caldera had filed a complaint pursuant to the CDCR’s policies and the CDCR had issued a cease and desist letter to Sergeant Grove on the same date. The Fourth DCA, however, explained the CDCR’s policies and procedures were apparently ineffective. To wit, Caldera had been subjected to further harassing conduct after the CDCR’s cease ad desist letter. Give the same, the Fourth DCA went on to hold, based on the totality of the circumstances, a jury could have reasonably found that the CDCR had failed to all reasonable steps to prevent the continued harassment.
III. Take Away
It is imperative for employers to develop a culture in the workplace that disfavors “offensive” and harassing conduct in the workplace. Caldera v. CDCR makes this point clear. Even where the employer maintains and follows its own anti-harassment policies, continued harassment will likely lead to liability. In managing anti-harassment in the workplace, employers may want to consider a proactive top-down leadership approach. As the Caldera case points out, waiting until an employee files a formal complaint will likely result in litigation. Utilizing a top-down leadership approach that holds managers and supervisors responsible for its employees would likely assist in identifying harassing conduct and ensuring all reasonable steps are taken to prevent it from continuing.
In determining what may constitute actionable harassing conduct, employers should first determine whether the conduct in question would be considered “offensive.” Ask the simple question, if you were in the employee’s shoes would you be offended. If the answer is “yes” or even “maybe”, it would be wise for employers to take immediate corrective action. Indeed, the Fourth DCA’s expansion of the definition of harassing conduct to include mimicking and mocking on 15 occasions, could lead to further expansion and litigation were a simple joke or side comment made with innocent intentions may be viewed as offensive and actionable harassing conduct.
[i] Augustine Caldera v. Department of Corrections and Rehabilitation (July 9, 2018) Fourth District Court of Appeals, District Three Case No. G053168, San Bernardino Superior Court Case No. CIVDS1000177.
n Francisco (N.D. Cal. 2008) 576 F.Supp.2d 1079, 1103.
[vi] Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1410.
[vii] Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263-64.
[viii] See e.g., Fuentes v. AutoZone, Inc. (2011) 200 Cal.App.4th 1221, 1224 (“Fuentes”).
[ix] Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609-10.
[x] Fuentes, supra, 200 Cal.App.4th at 1224-25.
[xi] Id. at 1237.
[xii] Hughes v. Pair (2009) 46 Cal.4th 1035, 1040.
[xiii] Id. at 1049.
[xiv] Brennan v. Townsend & O’Leary Enterprises, Inc. (2011) 199 Cal.App.4th 1336, 1342.
[xvii] Caldera v. CDCR (Feb. 25, 2014) Case No. G048943 [nonpub. Opn.]