Must the harassment to which an employee is subjected be severe or pervasive before an employer can be liable for failure to prevent harassment under FEHA?

Posted in: Employment Law, Trial Practice by Steven Vartabedian on

HarassmentDickson v. Burke Williams, Inc.(filed 3/6/15) B253154 is a case in which the jury awarded plaintiff employee $35,000 in compensatory damages, plus $250,000 in punitive damages, based on its finding that defendant employer failed to take reasonable steps to prevent sexual harassment by the massage therapy company’s customers. However, while the jury made a special verdict finding that plaintiff had been sexually harassed, in that same verdict form it found the harassment was not “severe or pervasive;” accordingly it determined that defendant was not liable for the separate cause of action of sexual harassment under FEHA.

Defendant employer’s trial counsel had tried to protect against this potentially inconsistent outcome by proposing an additional special verdict form (which was declined by the trial court) that would direct the jury to skip the “failure to prevent” deliberation if there was no corresponding finding of sexual harassment liability in the first place. Both in denying the defense verdict form and in denying the later JNOV motion, the trial court essentially determined that harassment which lacked severity or pervasiveness could still be legally sufficient to support a claim of failure to reasonably prevent harassment.

On defendant’s appeal, the Court of Appeal, Second Appellate District, Division Five, disagreed with the trial court, reversing the judgment as a matter of law, wiping out the award with no remand except for the trial court to enter a verdict in favor of defendant. The court’s discussion focused on whether Trujillo v. North County Transit (1998) 63 Cal.App.4h 280 applied. In Trujillo, the jury returned a special verdict on the claim that employee’s supervisor had racially harassed plaintiff determining there was no harassment at all. Plaintiff claims Trujillo is distinguishable because of the finding of some harassment here. However, the appellate court found Trujillo applicable in that the California Supreme Court had cited Trujillo for the proposition that “courts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k) [the FEHA provision establishing liability for failure to prevent harassment].” Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4.)  Thus the absence of actionable harassment precludes liability for failure to prevent harassment.

Of course the trial court could have avoided jury confusion here had it adopted the defense’s proposed verdict form/instruction stated above. Moreover, there was no valid basis in the first place for the trial court to have allowed plaintiff’s special verdict that allowed the jury to make any special finding of sexual harassment that did not meet the definition of “severe or pervasive.” Counsel and judges alike should take heed of the care necessary in crafting special verdicts and instructions, including the avoidance of unnecessary jury findings.

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