The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation against California employees on a variety of bases. The FEHA provides some of the best employment protections in the country, and has been expanded several times over the years to afford additional protections in the workplace. However, one of the greatest hurdles to employees is the statute of limitations. In California, an employee has one year from the date of the unlawful practice to file a charge with the Department of Fair Employment and Housing (“DFEH”). Failure to file a charge within the limitations period waives an employee’s rights to any claims she has under the FEHA. Further complicating matters is that the intake process at the DFEH has several steps and it has been unclear to employees as to when their charge was actually filed, and thus, whether they filed within the one-year period.

On Thursday, Governor Newsom signed AB 9 which extends the one year period to three years starting on January 1, 2020. The bill also specifies filing a complaint means filing an intake form with the DFEH and the operative date of the verified complaint relates back to the filing of the intake form- clarifying what has been a confusing issue for employees over the years. This new statute triples the time an employee has to file their charge, which is particularly valuable for those employees who feel they cannot come forward soon after the adverse employment action.

However, it is important to note that the bill specifically says it will not “be interpreted to revived lapsed claims.” So, if your statute of limitations has already passed, this new extension will not give you any relief. However, if you suffer an adverse employment action (for example, if you are fired) in or after January 2020, the new statute of limitations will apply. The stickier issue is what happens to claims that arose this year, or will arise between now and the end of the year? If you were fired on March 1, 2019, and believe it was due to your gender, you would have until February 2020 to file your charge. But what happens now? Do you have until February 2022 to file your claim? Or, do you still need to file by February 2020?

Normally, when a statute of limitations is increased, it applies prospectively to pending cases. In analyzing the bill, the Senate Judiciary Committee noted: “Applying these rules to this bill, it would automatically extend the time to file for incidents that occurred before the effective date of the change in the law, but for which the limitations period had not yet expired on the date of the enactment.” However, because the law does not make this point entirely clear, we strongly advise that you file as soon as possible to preserve any rights that you may have so that there is no argument that you have failed to file within the statute of limitations period. There are other good reasons to file sooner rather than later too- memories fade, key witnesses move out of state, documents go missing – so if you are considering filing a charge, don’t count on that three year statute just yet.

If you believe you have claim for work place discrimination, harassment, and/or retaliation and would like to discuss your options, contact Siegel LeWitter Malkani at (510)452-5000.

Jean Krasilnikoff

Ms. Zetwick claimed that Mr. Prieto didn’t reserve his hugs just for her. She claimed that over the years she saw Mr. Prieto hug and kiss dozens of female employees but never saw him hug male employees – instead, he would shake hands with male employees. On another occasion, Ms. Zetwick claimed that Mr. Prieto repeatedly asked another female employee how much she weighed until she answered and looked at the employee in a sexually suggestive manner. Mr. Prieto claimed that he did in fact hug male employees and that all of his hugs were just friendly hugs. The County also claimed that Ms. Zetwick hugged other male co-workers and joked about Mr. Prieto’s hugs.

Several courts have determined that hugs and kisses on the cheek do not always create a sexually hostile work environment. However, in determining whether such conduct does crease a hostile work environment courts must look at who engaged in the conduct, the conduct itself, the number of times the conduct occurs, and the period of time over which the conduct occurs. Importantly, the conduct must be severe or pervasive- it does not have to be both.

In stating a claim for a sexually hostile work environment, an employee must show that the conduct was sufficiently severe or pervasive to alter the conditions of employment and created an objectively abusive working environment. In Ms. Zetwick’s case, the trial court dismissed her claims, finding that Mr. Prieto’s conduct did not create an objectively abusive working environment. However, the Ninth Circuit Court of Appeals reversed the trial court, holding that “a reasonable juror could conclude that the differences in hugging of and women, were not, as the defendant argue, just ‘genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.’” Zetwick v. County of Yolo, 2017 WL 710476 (citing Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788.) The Court noted that reasonable jurors could look at the cumulative effect of the number of hugs and decide that his conduct was out of proportion to what is normal in employment and had become abusive. Furthermore, the Court recognized – consistent with prior Supreme Court decisions – that where the unwanted conduct is by a supervisor, the conduct has more power to effect the working environment.

Although the trial court disregarded evidence that Mr. Prieto had hugged and kissed other women, the Ninth Circuit correctly explained that evidence that Mr. Prieto engaged in similar conduct with other women is “relevant and probative of [a defendant’s] general attitude of disrespect toward his female employees, and his sexual objectification of them.” Zetwick v. County of Yolo, 2017 WL 710476 (citing Heyne v. Caruso (9th Cir. 1995) 69 F.3d 1475, 1479-1481. The Court reversed the trial court’s grant of summary judgment and sent the case back to the trial court for trial.

While not every touch, hug, or kiss in the workplace will create a sexually hostile work environment, if the conduct is either severe or pervasive, and employer may be liable for a claim of sexual harassment. If you believe you have been subject to a sexually hostile work environment, you should contact an attorney to discuss your legal rights.

Jean Krasilnikoff

The California Supreme Court put its thumbs on the wrong side of the scale of justice by letting Domino’s Pizza off the hook for sexual harassment because it was a franchisor. Patterson v. Domino’s Pizza, 60 Cal.4th 474 (2014). Nonetheless, it is important that any victim of sexual harassment or wrongful conduct look carefully at the franchise contract and the conduct of the franchisor and franchisee before determining whether or not to sue a franchisor.

The California Supreme Court found that, on the facts of this case, Domino’s didn’t have control or the right to control hiring/firing/discipline/employment policies and practices, and thus wasn’t responsible for the sexual harassment of Ms. Patterson. The Court declared that since Domino’s doesn’t have the right to control, or actual control, over these things, an employee can only sue the franchisee for sexual harassment. In reality, the Court decided it just didn’t want to make the franchisor responsible – regardless of the facts or the law.

In every case involving a franchise relationship, it is important that employees and their lawyers look carefully at all the facts involving the right to control. Some cases have gone the opposite way of Patterson. For example, Nichols v. Arthur Murray, Inc., 248 Cal.App 2d 610 (1967), concluded that the franchisor had the right to control day-to-day operations including employment relations. It came out the opposite of the Patterson case because of the specific facts regarding the franchisor’s “right to control” the franchise.

It is also important to ask whether the franchisor actually exercised control and/or acted as a joint employer. As noted by the dissent in the Patterson v. Domino’s case, the franchisor did exercise control, and did act as a joint employer. It did so by regular inspections and threats that it could revoke a franchisee’s status. It went so far as to “strongly hint[ed]” that certain employees should be fired.

Just because the California Supreme Court made a bad decision doesn’t mean that employees should give up on making a case for franchisor liability.

Jody LeWitter November 20, 2014

First, the California Court of Appeals made clear that the trial court overstepped its bounds when it dismissed a sexual harassment claim. Following the U.S. Supreme Court opinion in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the court held that same-sex harassment which included sexual comments intended to humiliate the plaintiff due to his gender identity constituted sexual harassment. It reversed the lower court’s ruling that the harassing conduct was not sufficiently “severe or pervasive” to constitute sexual harassment. It found that several months of a course of conduct of gifts and lunch purchases, sexual jokes, and pornographic computer images, was sufficient to bring a claim for sexual harassment.

On the other hand, the Court of Appeals dismissed a sexual harassment claim against another supervisor whose only conduct was showing computer pornography to a group of employees once or twice, and making an occasional joke.

Lewis also addressed a thorny evidentiary issue: in a retaliation claim, should a judge admit or exclude evidence of the underlying harassment where plaintiff’s claim is that he/she complained about the harassment and was retaliated against for making the complaint? In the Lewis case, the lower court held that the evidence of the harassment itself was not admissible. Instead, the court simply read a statement about the harassment. The Court of Appeals found this to be error. In other words, the jury needs to understand and be presented with the underlying conduct about which the plaintiff complains in order for the jury to rule on a retaliation complaint.

All this is good news for plaintiffs in sexual harassment or retaliation claims. And stay tuned, because the California Court of Appeals specifically did not address recent amendments to the Fair Employment and Housing Act which specifies that “…sexual harassment conduct need not be motivated by sexual desire.” Govt Code 12940(j)(4)(c). Certainly future cases interpreting this new provision should be helpful.

June 23, 2014 Jody LeWitter

However, the same panel of judges did understand that Ms. Westendorf’s claim for retaliatory termination should go forward, holding that there was a material fact as to whether she was fired because she complained of the crude and offensive remarks.

So, for Ms. Westendorf, the glass is half empty or half full, depending on the perspective!!

Jody I. LeWitter

School districts, like employers, have – under some circumstances – avoided legal responsibility for sexual harassment. Courts have declared that the school district and employer may not be liable for the sexual assault/harassment because the sexual harassment is outside the course and scope of the employee’s job duties. See, for example, John R. v. Oakland Unified School District (1989) 48 Cal. 3rd 438.

In this case, the California Supreme Court clarifies that a school district cannot escape liability for sexual harassment where its personnel knew or should have known of the employee’s misconduct and failed to take reasonable steps to prevent it. This ruling is very important to protecting girls (and boys) from sexual harassment in schools.

Employment law in California has a similar standard. An employer is responsible for sexual harassment by its managers and supervisors. See, Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397 (“harassment by a supervisor is unlawful regardless of whether the employer knows or should have known”). An employer is also responsible for the sexual harassment by a co-worker if – as is the case above – the employer knew or should have known of the misconduct of the co-worker. Here – as in C.A. v. William S. Hart School District – liability attaches because the employer and/or school district fails to properly hire or supervise, and improperly retained this employee.

This type of accountability makes the world – both schools and workplaces – a better place.

Jody I. LeWitter May 30, 2012

Poor Ms. Fuentes, a part time customer service representative, was just trying to do her job at Autozone. Her manager had the audacity to humiliate her by grabbing her and spinning her around in front of laughing customers, instructing her to, “show your butt to the customers and that way you can sell more.” When the customers returned later that day, the manager went at it again, ordering Fuentes: “Get ready to turn around for them.” The Court of Appeal accurately characterized this conduct as “humiliating Fuentes by exploiting her body.”

To add insult to injury, when Ms. Fuentes developed a fever blister on her lip, the same store manager started a vicious set of graphic discussions about how Ms. Fuentes must have obtained the blister, and how it was really herpes. This led to another manager spinning the rumor further, telling a coworker, “Be careful where you put your dick at with Marcelo [Fuentes],” implying that this described conduct was the cause of her blister. Some of these discussions occurred in front of laughing customers and coworkers. Some were repeated back to Ms. Fuentes. Ms. Fuentes testified regarding how these comments humiliated her and how, because she was having problems with certain male customers, she was concerned for her safety as she walked home from work at night.

The jury found for Ms. Fuentes on her claim of sexual harassment. Autozone appealed the jury’s verdict in Ms. Fuentes’s favor. It tried to make a mountain out of a molehill, asserting that some minor inconsistencies in the testimony (such as the dates on which certain things happened or the specifics of exactly what happened between witnesses) made plaintiff’s testimony “inherently improbable” and thus the verdict should somehow be reversed! The Court of Appeal rejected this pathetic attempt to avoid liability, noting that “The evidence in this case is not ‘inherently improbable.’ It presents a common situation where there are inconsistencies and contradictions in trial testimony . . . this is for resolution by the jury. We infer the jury credited Fuentes’s testimony and the testimony corroborating it . . . .”

It is important to note that this opinion stands for the proposition that for conduct to be “severe or pervasive” as required by the current case law on sexual harassment, it need not be long term. The court specifically noted that the three week period over which Ms. Fuentes was mistreated was a sufficient amount of time. This court noted that the conduct in question was especially egregious because the manager used the plaintiff’s body in a way that was physically humiliating, and that the herpes rumors unreasonably interfered with the plaintiff’s ability to do her job.

The Court distinguished Ms. Fuentes’s situation from that of plaintiffs in other cases where the courts found for the employer (e.g., the conduct was specifically aimed at Fuentes, distinguishing Lyle v Warner Brothers Television Productions (2006) 38 Cal.4th 264; the conduct involved a physical threat and/or plaintiff’s immediate supervisor, distinguishing Mokler v. County of Orange (2007) 157 Cal.App.4th 121; the conduct was not a few specific incidents spread out over a period of years, distinguishing Haberman v. Cengane Learning, Inc. (2009) 180 Cal.App.4th 365).

What this court–and all courts, really–should have said is: whether or not there is a hostile environment is a question of fact based on a totality of the circumstances from the point of view of the female employee in this predicament, and that this question is for the triers of fact, not the judges who consistently wish to substitute their own opinions and fact finding for that of the jury. It is only in rare and unique circumstances that the court should move in and take this determination away from the jury. Courts cannot seem to help themselves from overstepping their bounds, demonstrating, time and time again, that the courts are still male dominated and biased, and that they still do not understand what it means to be a working woman who simply wants to be afforded the basic dignity of being treated as a peer and equal, in accordance to her work performance, rather than her perceived sexuality. Once the courts somehow finally understand this, sexual harassment claims will take their place as equal to other claims, the law will be less convoluted, and women will be provided with the protections they are entitled to under the law.

Jody LeWitter December 27, 2011

However, this progress should not make us close our eyes to inexplicable legal decisions where the courts simply don’t seem to get it. First, there is the judicially created doctrine that a claim for sexual harassment must involve conduct that is “severe or pervasive.” This judicial fiction can be used to permit abhorrent conduct in the workplace, and label it as “not sexual harassment.” Second, the concept of “severe or pervasive” is, to put it mildly, a subjective concept subject to the decision maker’s own bias or perspective. In particular, the bias of judicial gatekeepers, who throw out sexual harassment cases before they reach a jury or overturn jury verdicts finding the plaintiff was a victim of sexual harassment, keeps getting in the way. Judges can simply declare that the conduct isn’t severe or pervasive enough and voilà, the plaintiff has not been harassed!

This leads me to comment on the recent case of Brennan v Towsend & O’Leary, ___Cal.App.4th___ (October 18, 2011). In Ms. Brennan’s case the jury found that the employer created a hostile environment. The judge overturned the jury’s verdict on a judgment notwithstanding the verdict (JNOV). The Court of Appeal agreed, claiming that the conduct was not, in its judicial opinion, severe or pervasive.

However, determining whether or not conduct is severe or pervasive is not an objective determination; it is in the eye of the beholder. Thus, we must ask: not severe or pervasive enough according to whom? The conduct in the Brennan case was severe or pervasive enough for the jury. The superior court judge originally let the evidence go to trial, suggesting at least initially that the judge must have thought it was severe or pervasive enough for the jury to hear.

So, let’s look at the facts here, and you can vote yourself. The fact that readers may differ on whether the conduct was severe or pervasive is just my point: this is a jury question, not a gatekeeper question. I personally can’t quite get over the fact that the trial judge and three Court of Appeal judges went out of their way to protect a manager who referred to the plaintiff in a corporate email as a “big-titted mindless one.” This was not the only sexist language or conduct in the workplace. What about the company sponsored party where one of the owners wore a Santa hat with the word “bitch” printed across it? Or what about the owner who repeatedly questioned the plaintiff about her sex life, along with inappropriate hand gestures? And once Ms. Brennan complained, she was retaliated against. As noted in the dissent, although the retaliation was not sexual in nature, it was sex based.

I do believe that Ms. Brennan may have been in a better position if her complaint had included a claim for retaliation. However, that is no reason to second guess the jury’s judgment and discretion. We think we know sexual harassment when we see it. How dare these four judges take away Ms. Brennan’s verdict to justify their own personal and subjective beliefs that the environment wasn’t hostile enough! We still have a long way to go, baby!

Jody LeWitter

November 27, 2011

During the trial of this case, Ms. Panjota’s lawyers tried, over and over again, to present to the jury the ample evidence that Mr. Anton’s obscene and abusive conduct and statements were based on his discriminatory feeling s towards women. Besides presenting Ms. Panjota’s own riveting testimony, Ms. Panjota’s lawyers also wanted to present “me too” evidence, i.e. evidence regarding the manner in which Mr. Anton treated other female employees. Over and over again, the Kern County trial judge refused to admit a wide variety of “me too” evidence, even though Ms. Panjota explained that the evidence was to establish Mr.Anton’s (discriminatory) state of mind. Panjota v Anton, ___ Cal.App.4th ___ ( August 9, 2011).

Thank goodness Ms. Panjota’s counsel did not give up, and created a good fact record. This permitted the Court of Appeals to understood the errors of the lower court’s ways. The Court of Appeals held, in a 54 page opinion, that this “me too” evidence should have been admitted because Anthon’s intent was at issue, and the way Anton treated and spoke to other female employees shed light on whether his intent was discriminatory or merely rude and disgusting.

The Court of Appeals aptly explained that, “Anton’s case was premised on the claim that his frequent use of profanity at a loud volume was always directed at situations, not people; it happened in the present of men as well as women; and Anton would never have tolerated harassing behavior by anyone in his office, let alone perpetrated it himself.” Given that this was Anton’s case (or his defense, so to speak), the court ruled that he opened the door to this “me too” evidence “to rebut claims made by defense witnesses”, and that the evidence was relevant to “show that he harbored a discriminatory intent or bias based on gender” and to “impeach his credibility”. What were they ( a lawyer who harassed his staff in such a blatantly sexist way, and a trial judge charged with making fair evidentiary rulings) thinking?

At least the Court of Appeals was thinking. It understood that Anton’s state of mind towards his female employees could help prove that the hostile environment in which Ms. Panjota worked was sex-based and that the reason she was fired was due to her sex. Now, Mr. Anton has the opportunity to show what he should be thinking by offering up a substantial sum of cash to Ms. Panjota before he is forced to go back and face a jury which will hear the full story!

Jody LeWitter August 30, 2011