The Accardi Case

[*345] [**293] Sexual harassment does not necessarily involve sexual conduct. It need not have anything to do with lewd acts, double entendres or sexual advances. Sexual harassment may involve conduct, whether blatant or subtle, that discriminates against a person solely because of that person's sex.

In [***2] this writ proceeding, we hold that sexual harassment occurs when an employer creates a hostile environment for an employee because of that employee's sex. We also hold that a claim for sexual harassment is not time-barred when there are continuous acts of discrimination over a period of time provided that some of those acts fall within the limitations period. We further hold that a claim of emotional distress arising out of sexual harassment is not preempted by workers' compensation law.

Petitioner, Debbra J. Accardi, was at one time employed as a police officer with the City of Simi Valley. On October 11, 1991, she filed sexual discrimination complaints with the California Department of Fair Employment and Housing (DFEH). On October 17, 1991, Accardi obtained a "right to sue letter" from DFEH. On March 13, 1992, she filed a lawsuit against real parties, the City of Simi Valley, James Bartholomew, Richard Wright, Anthony Harper III, and Mark Layhew, and others. Her complaint alleges causes of action for sexual harassment in violation of Government Code section 12940 et seq., constructive discharge, intentional interference with business relationship, and intentional infliction of [***3] emotional distress.

[**294] Real parties demurred upon the ground that the causes of action for sexual harassment and intentional infliction of emotional distress are preempted by the exclusive provisions of workers' compensation laws. ( Lab. Code, § 132a, 3601; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 151 [233 Cal.Rptr. 308, 729 P.2d 743].) They also asserted that the cause of action for sexual harassment was barred by the statute of limitations. ( Gov. Code, § 12960.) Respondent superior court sustained the demurrers with leave to amend.

SEXUAL HARASSMENT--THE CREATION OF A HOSTILE WORK ENVIRONMENT BECAUSE OF A PERSON'S SEX

^HN2It is unlawful for an employer to discriminate against an individual because of their sex. (42 U.S.C. § 2000e-2(a)(1); Gov. Code, § 12940 et [*348] seq.) Article I, section 8 of the California Constitution prohibits the discrimination in employment based on "sex, race, creed, color, or national or ethnic origin."

^CA(4)(4) Sexual harassment is a form of sex discrimination. ( Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67 [91 L.Ed.2d 49, 59, 106 S.Ct. 2399]; Katz v. Dole (4th Cir. 1983) 709 F.2d 251, 254; Lindemann et al., Sexual Harassment in Employment Law (1992) pp. 9-10.) There are two actionable types of sexual harassment: 1. Quid pro quo harassment. This form of harassment occurs when a term of employment is conditioned upon unwelcome sexual advances. [***9] ( Highlander v. K.F.C. Nat. Management Co. (6th Cir. 1986) 805 F.2d 644.) 2. The creation of a hostile work environment for the employee because of that employee's sex. ( Chamberlin v. 101 Realty, Inc. (1st Cir. 1990) 915 F.2d 777, 782, quoting 29 C.F.R. § 1604.11(a) (1983).) Hostile environment and quid pro quo harassment claims are not always separate and distinct, but in this case the sexual harassment claim arises out of a hostile work environment. ( Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 607.)

The term "sexual harassment" may lead many people to think of the first type of sexual harassment, that which involves unwelcome sexual advances. For example, in Henson v. City of Dundee (11th Cir. 1982) 682 F.2d 897, a female police dispatcher stated a claim for sexual harassment where she alleged she had been denied promotion because she had rejected her supervisor's request for sexual favors. (See also Sampayo-Garraton v. Rave, Inc. (D.P.R. 1989) 726 F.Supp. 18.)

^HN3But sexual harassment [***10] of the second type, the creation of a hostile work environment, need not have anything to do with sexual advances. ( Andrews v. City of Philadelphia (3d Cir. 1990) 895 F.2d 1469, 1485; McKinney v. Dole (D.C.Cir. 1985) 765 F.2d 1129, 1138 [246 App.D.C. 376]; see Lindemann & Kadue, Sexual Harassment in Employment Law (1992) p. 174.) It shows itself in the form of intimidation and hostility for the purpose of interfering with an individual's work performance. ( Chamberlin v. 101 Realty, Inc., supra, 915 F.2d at p. 782, quoting 29 C.F.R. § 1604.11(a) (1983).) To plead a cause of action for this type of sexual harassment, it is "only necessary to show [**296] that gender is a substantial factor in the discrimination, and that if the plaintiff 'had been a man she would not have been treated in the same manner.' " ( Tomkins v. Public Serv. Elec. & Gas Co. (3d Cir. 1977) 568 F.2d 1044, 1047, fn. 4.)

This type of harassment can occur in a variety of ways. ( Andrews v. City of Philadelphia (3d Cir. 1990) 895 F.2d 1469, 1485 [***11] [". . . the pervasive use [*349] of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile environment."]; Hall v. Gus Const. Co., Inc. (8th Cir. 1988) 842 F.2d 1010 [incidents of cruel practical jokes, although not conduct of a sexual nature, may be properly considered to constitute sexual harassment]; Broderick v. Ruder (D.D.C. 1988) 685 F.Supp. 1269 [supervisor obtains sexual favors from subordinates other than complainant].)

As the Fisher court pointed out, " 'sexual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of her statutory right to work in a place free of discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of well-being.' [Citation.]" ( Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 608.) [***12]