Employment Law 2

The California Court of Appeal recently issued two important decisions clarifying the scope of an employer’s liability for sexual harassment under California’s Fair Employment and Housing Act (FEHA).

"Supervisor" Defined Broadly
Chapman v Enos (March 10, 2004 A097943).
The distinction between supervisors and non-supervisors can be extremely important in regard to an employer’s liability for harassment claims. Under FEHA, an employer is strictly liable for the harassing actions of its supervisors. An employer, however, is only liable for harassment by a non-supervising co-worker if it knew or should have known of the conduct and failed to take immediate corrective action. On March 10, 2004, the Court of Appeal clarified the definition of a "supervisor" under FEHA.

In 1988, April Chapman became an investigator for the Sonoma County District Attorney’s Office and, in 1997, was assigned to the major fraud unit. Although Chapman’s direct supervisors were senior and chief investigators, she performed her daily duties under the direction of Bruce Enos, a deputy district attorney assigned to her unit. Enos assigned tasks to Chapman, however, he was not responsible for her work performance and did not have the authority to discharge, transfer, or promote her.

Throughout 1997 and 1998, Enos engaged in harassing behavior towards Chapman. Although Chapman told Enos that she was not interested in a personal relationship with him, Enos persisted. Due to Enos’ relentless behavior, Chapman eventually reported him and she was transferred to another department. Subsequently, Chapman sued the County and other defendants for, among other things, sexual harassment in violation of FEHA. The pivotal issue regarding the County’s liability for Enos’ harassing behavior towards Chapman was whether Enos was Chapman’s "supervisor."

Addressing the definition of a "supervisor" under the FEHA, the Court of Appeal analyzed the plain language of FEHA. FEHA defines a supervisor as any individual having "the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment." (See Govt Code § 12926). Interpreting this language broadly, the Court of Appeal determined that a "supervisor" includes any individual that simply directs an employee’s daily duties, even if the individual is not accountable or responsible for the employee’s performance and work product.

Importantly, because this case effectively expands the class of employees that may be deemed "supervisors" under FEHA, employers now face a broader potential for strict liability for the harassing conduct of their employees. Thus, this decision highlights the importance of providing effective sexual harassment prevention training to all employees in a supervisory role. Furthermore, courts generally employ a more narrow definition of "supervisor" under federal anti-harassment law. As a result, although an employee may not be a "supervisor" under federal law, the same employee may be deemed a "supervisor" under California law for sexual harassment liability purposes

"Creative Necessity" Defense To Sexual Harassment Claims Recognized
Lyle v Warner Brothers Television Productions (April 21, 2004 B160528).
In June 1999, Amaani Lyle was hired as a writers’ assistant for the "Friends" television show. In this position, Lyle was responsible for taking detailed notes for the writers when they were discussing story lines, jokes, and dialog during meetings. During these meetings, the writers often spoke about sexual fantasies and experiences, made crude sex-related jokes and gestures, and made disparaging remarks about women. Although Lyle was present when these comments were made, none of the comments were directed at or involved Lyle personally. After being terminated for poor performance, Lyle sued Warner Brothers and several writers for, among other things, sexual harassment. In discussing Lyle’s claim, the Court of Appeal made several important clarifications regarding sexual harassment claims under FEHA and recognized a new "creative necessity" defense available to employers.

First, the Court of Appeal made it clear that in order to establish a claim of sexual harassment, a plaintiff is not required to show that the harassing conduct was directed at him or her personally. Instead, a plaintiff simply must establish that he or she personally witnessed the harassing conduct and that it was in his or her immediate work environment. Further, the Court of Appeal explained that sexual harassment is not a fault-based tort, but can occur even when the harassers do not realize the offensive nature of their conduct or intend to harass the victim. Thus, the fact that the writers felt that they were treating Lyle "just like one of the guys" and did not intend to offend Lyle did not constitute a valid defense to Lyle’s harassment claim.

Finally, on the positive side for employers, the Court of Appeal recognized a "creative necessity" defense to sexual harassment claims. More specifically, the writers argued that their sex-related conduct was a necessary part of the creative process of developing story lines, dialogue and jokes. The Court agreed that, to the extent the writers could establish that their conduct was within the scope of necessary job performance and not engaged in out of purely personal gratification or meanness, the writers could argue that their conduct should not be viewed as harassment but as a creative necessity. As a practical matter, however, the application of this "creative necessity" defense will be extremely limited as very few employers will be able to assert that sexually explicit conduct was within the scope of necessary job performance.

Advising California Employers
2d edition, 1556 pages, 2 looseleaf volumes, updated 1/04, BU-32030

Bringing and Defending a Sexual Harassment Action
2 volumes, 3/00
CP11722