G033036
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE
Lisa Weaver sued her former employer Ormco Corporation, 1 for hostile workplace sexual harassment. Her complaint included several tort causes of [*2] action, including under the California Fair Employment and Housing Act (FEHA) for sexual discrimination and harassment (Gov. Code, § 12940, subd. (j)) 2 and failure to prevent sexual discrimination and harassment from occurring (§ 12940, subd. (k)). Following a trial, the jury returned a verdict finding in Ormco's favor on all but the failure to prevent cause of action on which it awarded Weaver $20,000 in damages.
III
FAILURE [*17] TO PREVENT SEXUAL HARASSMENT CLAIM
Ormco contends the verdict in favor of Weaver on her failure to prevent sexual harassment cause of action must be reversed because Weaver failed to prove she suffered sexual harassment within the meaning of the FEHA. Ormco couches its analysis in two arguments: (1) the jury instruction on the failure to prevent claim was defective because it did not instruct the jury Weaver had to suffer actionable harassment as a prerequisite to her recovery on her failure to prevent harassment claim; and (2) the trial court should have granted its motion for JNOV on the failure to prevent cause of action because the jury found against Weaver on her cause of action for harassment.
Both of Ormco's arguments are premised upon the same fundamental legal issue: Is proof of actionable sexual harassment under the FEHA a prerequisite to Weaver prevailing on a cause of action against her employer under section 12940, subdivision (k), for the employer's failure to prevent sexual harassment? We conclude it is.
A. The Statutory Scheme: Elements of a Failure to Prevent Cause of Action
We begin with the statutory scheme of the FEHA as it pertains to sexual harassment. [*18] Two different employer obligations are implicated here: the duty to not sexually harass an employee and the duty to take reasonable steps to prevent workplace harassment from occurring.
1. Sexual Harassment
Section 12940 of the FEHA describes a variety of unfair employment practices including discrimination on the basis of sex. (§ 12940, subd. (a).) "[T]he FEHA expressly and separately prohibits workplace harassment based on sex." (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1039.) Section 12940, subdivision (j)(1), specifically provides it is unlawful for "an employer . . . because of . . . sex . . . to harass an employee . . . . Harassment of an employee . . . by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. . . . An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment." "Sexual harassment can consist of verbal communications, such as asking for [*19] a date, telling sexual jokes, bragging about sexual exploits, making comments regarding appearance or anatomy, or using terms with double meanings (one of which is sexual). However, nonverbal actions can also constitute unlawful harassment, such as touching oneself or another (particularly in sexually sensitive places), suggestive eye contact, or posting or circulating sexually oriented posters, cartoons, or pictures. [Citations.]" (2 Advising Cal. Employers and Employees (Cont.Ed.Bar 2007) § 15.90, p. 1332; see Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1).)
California courts apply the federal threshold standard applicable to harassment claims under Title VII of the federal Civil Rights Act (42 U.S.C. § 2000e'2(a)(1)), to claims of sexual harassment under the FEHA. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 462'464.) It is not sufficient that there simply be some offensive conduct; to be actionable the harassing conduct must either constitute "quid pro quo" harassment (where employment is conditioned upon submission to unwelcome sexual advances) or, the theory pursued in this case, result in [*20] a hostile work environment (where the work environment is hostile or abusive on the basis of sex). (Ibid.; see also Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516'517 (Beyda).)
"[T]o prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. [Citations.] The working environment must be evaluated in light of the totality of the circumstances: '[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.' [Citation.] [P] [T]the evidence in a hostile environment sexual harassment case should not be viewed too narrowly: '[T]he objective severity of harassment should be judged from the perspective of a reasonable [*21] person in the plaintiff's position, considering "all the circumstances." [Citation.]. . . . [T]hat inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. . . . The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.' [Citations.]" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) Here, the jury returned a general verdict finding against Weaver on her hostile workplace sexual harassment/discrimination cause of action against Ormco.
2. Failure to Take Reasonable Steps to Prevent Harassment
In addition to making it unlawful for employers to sexually harass an employee, the FEHA also demands employers take all reasonable steps [*22] to prevent harassment from occurring in the workplace. This obligation is articulated in section 12940, subdivision (j)(1) (the actual anti'harassment section), in the second to last sentence which provides, "An entity[,]" described in the first sentence of the subdivision as being employers and other employment'related entities, "shall take all reasonable steps to prevent harassment from occurring." The obligation is also articulated in section 12940, subdivision (k), which similarly provides it is an unlawful employment practice, "For an employer [and other employment related entities], to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring."
Although the "reasonable steps" language in both subdivisions (j)(1), and (k), of section 12940 is virtually identical (both require an employer "take all reasonable steps necessary to prevent . . . harassment from occurring"), our Supreme Court has described section 12940, subdivision (k), as embodying "a separate unlawful employment practice . . . ." (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040.) And in Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 286-287 [*23] (Trujillo), the court explained section 12940, subdivision (k), creates a separate actionable tort enforceable by a private plaintiff who can establish the usual tort elements of duty of care, breach of duty (a negligent act or omission), causation, and damages. 5 However, it is also clear from Trujillo and other authorities there can be no private cause of action for violation of 12940, subdivision (k), absent a finding the plaintiff suffered actionable harassment (i.e., quid pro quo or hostile workplace) under the FEHA.
4. Other Authorities
Several federal courts have agreed with Trujillo that actionable harassment or discrimination under the FEHA must be demonstrated to prevail on a claim for failure to prevent harassment or discrimination. In Kohler v. Inter'Tel Technologies (9th Cir. 2001) 244 F.3d 1167, 1174, fn. 4, the court noted the requirement that an employer take reasonable steps to prevent harassment "is only a basis for liability if the plaintiff proves [*28] that actual discrimination or harassment occurred." In Tritichler v. County of Lake (9th Cir. 2004) 358 F.3d 1150, 1154, the court noted the jury was properly instructed the plaintiff must "be found to have been subjected to sexual harassment stemming from a hostile environment" before it could reach the issue of whether section 12940, subdivision (k), had been violated as well. (See also 2 Cal. Employment Law (Mathew Bender 2006) § 41.81[7][a], p. 41'437 ["no suit may be maintained for violation of [§ 12940, subd. (k),] if the plaintiffs have not actually suffered any employment discrimination or harassment"]; Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2006) [P]10:481.2, p. 10'75 ["[n]o [section 12940, subd. (k)[,] action lies for failure to take necessary steps to prevent harassment if no harassment in fact occurs"].)
5. Statutory Interpretation
Weaver counters that as a matter of statutory interpretation, section 12940, subdivision (k), must be read as permitting a plaintiff to recover damages for an employer's failure to prevent workplace sexual harassment based on something less than actionable sexual [*29] harassment. In other words, the "harassment" an employer must endeavor to prevent under section 12940, subdivision (k), can be something different (and less than) the quid pro quo or hostile workplace "harassment" an employer must take steps to prevent under section 12940, subdivision (j)(1). To hold otherwise, she urges, would render section 12940, subdivision (k), meaningless as it would simply duplicate the cause of action already provided for in section 12940, subdivision (j)(1). We disagree.
We begin by reiterating the virtually identical language of both subdivisions. Section 12940, subdivision (j)(1), provides it is an unlawful employment practice to sexually harass an employee and states an employer "shall take all reasonable steps to prevent harassment from occurring." (Italics added.) Section 12940, subdivision (k), provides it is an unlawful employment practice, "For an employer [and other employment related entities], to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." (Italics and bold added.) "'"To understand the intended meaning of a statutory phrase, we may consider use of the same or similar language [*30] in other statutes, because similar words or phrases in statutes in pari materia [that is, dealing with the same subject matter] ordinarily will be given the same interpretation." [Citations.]' [Citation.]" (People v. Coker (2004) 120 Cal.App.4th 581, 588.) Given that the language in both subdivisions is virtually identical, and nothing on the face of the statute indicates they were intended to have a different meaning, we assume they mean the same thing.
[*33] Furthermore, although we agree with Ormco the failure to prevent cause of action requires a finding of actionable harassment under the FEHA, that does not equate to a conclusion that to prevail on a section 12940, subdivision (k), cause of action, a plaintiff must first prevail on a section 12940, subdivision (j)(1), cause of action. Although both causes of action must be based upon a plaintiff suffering sexual harassment that would be actionable under the FEHA (i.e., quid pro quo or hostile workplace), as one commentator has noted, "[the] statutory tort [i.e., § 12940, subdivision (k),] is not dependent on the employer's vicarious liability for the harassment." (Chin et al., Cal. Practice Guide: Employment Litigation, supra, [P] 10:481.1, at p. 10'75.) Although we are cognizant published jury instructions "are not themselves the law, and are not authority to establish legal propositions or precedent" (People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7), we note the new CACI No. 2527, relied upon by both Ormco and Weaver, contains no respondeat superior requirement. Thus, additionally prevailing on a section 12940, subdivision (k), [*34] failure to prevent cause of action "may have no effect where the employer is already vicariously liable for the harassment [citation]. In such cases, any damages resulting from its breach of duty to prevent the harassment would likely be the same as those resulting from the harassment itself. [P] On the other hand, the employer's indifference to harassment may create additional exposure to emotional distress damages where the indifference rendered plaintiff helpless to remedy or stop the harassment." (Chin et al., California Practice Guide: Employment Litigation, supra, [P] 10:481.1, at p. 10'75.) In other words, a plaintiff could lose on her hostile workplace sexual harassment cause of action under section 12940, subdivision (j)(1), because she cannot prove the employer should be held vicariously liable for any particular employee's sexually harassing conduct. But, the hostile workplace sexual harassment suffered by the plaintiff could nonetheless be actionable under section 12940, subdivision (k), because the employer failed to take reasonable steps to prevent harassment from occurring in the workplace.
6. Conclusion
We agree with the conclusion of [*35] Trujillo that there must be a finding of actual harassment or discrimination under the FEHA for a plaintiff to prevail on cause of action under section 12940, subdivision (k). "Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented." (Trujillo, supra, 63 Cal.App.4th at p. 289.) We further conclude the harassment or discrimination suffered by the plaintiff must be actionable under the FEHA, i.e., in this case sexual harassment that meets the level of hostile work place harassment. We must then turn to how that rule plays out in this case in view of the jury instructions given and the jury's verdicts.
The elements of a private cause of action against an employer for sexual harassment under section 12940, subdivision [*36] (j)(1), are: "(1) [p]laintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior." (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 608, 262 Cal. Rptr. 842, fn. omitted; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1122'1123.) The jury was given BAJI Nos. 12.05 and 12.20, instructing it on the elements of a hostile workplace sexual harassment cause of action and on an employer's respondeat superior liability for such harassment.
Over Ormco's objections, the jury was given a special instruction on the section 12940, subdivision (k), failure to prevent sexual harassment cause of action which was prepared by Weaver. In full, the instruction read: "The essential elements of a claim for failure to maintain a workplace free from sexual harassment are: [P] (1) The employer had knowledge of the employee's propensity [*37] to engage in sexually harassing behaviors, prior to the employee engaging in such behaviors; [P] (2) The employer did not take actions reasonably calculated to: [P] a. Stop the employee from engaging in sexually harassing behaviors; or [P] b. Persuade other employees from [sic] engaging in sexually harassing behaviors."
The instruction was patently incorrect. Not only did the instruction omit any causal connection between Weaver and "sexually harassing behaviors" in the workplace, it failed to instruct Weaver must show she was subjected to actionable harassing conduct within the meaning of FEHA, e.g., hostile workplace sexual harassment as a result of the Ormco's failures. (Trujillo, supra, 63 Cal.App.4th at p. 289.) The instruction allowed Weaver to recover simply if there was any "harassing behavior" taking place in the workplace, regardless of whether that "behavior" amounted to harassing conduct that was sufficiently severe or pervasive so as to have the effect of altering the conditions of Weaver's employment and creating an intimidating, hostile, abusive, or offensive working environment. 8 "Instructional error in a civil case is prejudicial 'where [*38] it seems probable' that the error 'prejudicially affected the verdict.' [Citations.]" (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) The instructional error here quite obviously prejudicially affected the verdict. There were no other instructions that reasonably would have clarified or corrected the erroneous instruction on the section 12940, subdivision (k), failure to prevent cause of action. (See Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 429.) In view of the jury's verdict against Weaver on her other causes of action, there is a reasonable probability a properly instructed jury might have found against her on this cause of action as well.
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