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January 2000 
Vol. 6 No. 1 ISSN 1087-6219
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The California Supreme Court has ruled that an employee may not recover damages for harassment from a fellow employee under the Fair Employment and Housing Act (FEHA). It did not decide whether supervisors may be held individually liable.
In Reno v. Baird, 18 Cal. 4th 640 (1998), the Supreme Court ruled that there was no individual liability for discrimination under FEHA. In doing so, it distinguished the statutory language for harassment liability. Many assumed that there was individual liability for harassment. Decisions by the Fair Employment and Housing Commission came to the same conclusion. They were wrong.
FEHA provides that it is an “unlawful employment practice” for an “employer” or “any other person” to harass an employee or applicant. Harassment “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.”
“Any other person,” if read literally, could include everyone in the world. However, it is limited by the second sentence, which provides that harassment by non-supervisors is unlawful only if the employer fails to take immediate and appropriate corrective action. Therefore, only the employer can commit the unlawful employment practice that triggers liability for damages.
Plaintiff argued that imposing personal liability on coworkers was necessary to deter harassment effectively. However, FEHA obligates the employer to control and discipline its employees, thereby deterring harassment with or without personal liability for coworkers.
The decision brings California law in line with federal decisions interpreting Title VII. See Miller v. Maxwell's Int'l, Inc., 991 F.2d 583 (9th Cir. 1993).
Carrisales v. Department of Corrections, 21 Cal. 4th 1132 (1999).
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The California Supreme Court has ruled that a parking garage did not owe a duty to its tenants to prevent sexual assaults. Such crimes were not sufficiently foreseeable.
A masked assailant sexually assaulted Sharon P. at gunpoint in the garage of the office building where she worked. There had not been any physical assaults in the building or the garage in the previous ten years. A bank on the ground floor of the building had been robbed seven times during the previous two years. In the prior year, there had been two rapes in the 50 square blocks surrounding the building.
The condition of the garage had deteriorated in the months leading up to the assault. Several lights were out at a time, leaving several darkened areas where an attacker could lie in wait. The garage's security camera had not been working for months.
Property owners have a duty to take reasonable steps to guard against foreseeable criminal acts. In Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666 (1993), the Supreme Court ruled that a shopping mall owner did not have a duty to provide security patrols to guard against violent crime. The decision stated that the necessary foreseeability could “rarely, if ever,” be established without evidence of prior, similar violent crimes. The Court noted that it was not deciding “whether some types of commercial property are so inherently dangerous that, even in the absence of prior similar incidents, providing security guards will fall within the scope of a landowner's duty of care.”
In the present case, the Court rejected the notion that underground parking structures are so inherently dangerous as to impose a duty to provide security guards. There was no evidence to show that such structures were actually more prone to violence than other locations. This particular parking garage had been crime-free for 10 years without employing security guards. Forcing all garage operators to employ security guards would effectively make them insurers of public safety, contrary to public policy.
Sharon P.'s argument that the garage owner should have adopted other security measures fared no better. It is questionable whether more adequate lighting and an operative security camera would have been effective in preventing crime. It is also questionable whether those measures would have been any less burdensome than hiring security guards. In any event, sexual assault was not a reasonably foreseeable risk because there was no evidence of substantially similar crimes.
Sharon P. v. Arman, Ltd., 21 Cal. 4th 1181 (1999).
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The First District Court of Appeal in San Francisco has ruled that firing an employee whose attorney wrote a letter in an attempt to resolve an employer-employee dispute subjects the employer to liability for tortious wrongful termination. Such an act violates Labor Code section 923's protection of the employee's right to designate a representative to negotiate the terms and conditions of employment.
Kelley Gelini, an attorney, worked for the law office of Kenneth Tishgart. Within a week after she told Tishgart that she was pregnant, he reduced her hours and pay by half. She hired an attorney, who wrote a letter accusing Tishgart of discriminating against Gelini on the basis of her pregnancy. The letter suggested an adjustment of the terms and conditions of employment as a resolution. Less than a week later, Tishgart fired Gelini.
In Gelini's ensuing lawsuit, the jury found that Tishgart did not fire her because she was pregnant, but did fire her in retaliation for the attorney's letter. It awarded her $15,000 in economic damages. It also found that she had suffered emotional distress, but did not award her any damages for that injury.
Section 923 declares that it is “the public policy of this State” that “the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
If it were writing on a clean slate, the Court of Appeal would have ruled that the statute's goal was to protect the right to bargain collectively and to pursue other mutual remedies. Therefore, the statute would not apply to Gelini's individual negotiations with her employer.
However, other Courts of Appeal had already held that the provision did apply to an individual employee. Hentzel v. Singer Co., 138 Cal. App. 3d 290 (1982); Montalvo v. Zamora, 7 Cal. App. 3d 69 (1970). Two decisions of the Supreme Court regarding the wrongful termination tort cited the holding with approval. Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988); Tameny v. Atlantic Ritchfield Co., 27 Cal. 3d 167 (1980). Therefore, the court deferred to stare decisis, and left it to the Supreme Court to alter the “settled interpretation,” if appropriate.
The decision does point out that section 923 does not impose an affirmative duty to bargain. Therefore, Tishgart was free to ignore the attorney's letter. The violation occurs when the motivation for the employer's conduct is the employee's exercise of the right to designate a representative to negotiate on his or her behalf.
Gelini v. Tishgart, 1999 WL 1257683 (Cal. Ct. App. Dec. 28, 1999).
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The First District Court of Appeal in San Francisco has ruled that an employer's arbitration agreement that only required the employee to arbitrate his claims was unenforceable as unconscionable.
Circuit City requires job applicants to sign the “Circuit City Dispute Resolution Agreement.” The agreement requires employees to arbitrate all claims related to their employment in accordance with Circuit City's “Dispute Resolution Rules and Procedures.” Those rules (1) prohibit the arbitrator from hearing class actions, (2) limit discovery, (3) require all claims to be filed within one year of discovery of the facts underlying the claim, (4) restrict punitive damages to the greater of $5,000 or the amount of economic damages, (5) require the parties to share the costs of arbitration, and (6) authorize an award of attorney fees and costs to the prevailing party.
Ramirez filed a class action alleging that Circuit City violated the wage and hour laws. The trial court denied Circuit City's petition to compel arbitration, and the Court of Appeal affirmed.
The doctrine of unconscionability bars enforcement of an arbitration agreement if it is both procedurally and substantively unconscionable. It is procedurally unconscionable if there was no meaningful choice and the weaker party would not have understood the rights being given up. It is substantively unconscionable if its one-sidedness cannot be objectively justified.
Circuit City's arbitration agreement was procedurally unconscionable, because Ramirez had no meaningful choice. Circuit City would not have considered him for employment if he did not sign the agreement. Although he was free to seek employment elsewhere, he lacked much in the way of salable skills, and Circuit City was in a position to provide the needed job. It was also unrealistic to expect Ramirez to understand the nature of the rights that he was giving up.
The agreement was substantively unconscionable because it was entirely one-sided. There were no restrictions on Circuit City's right to seek redress against its employees in court. The court was also troubled by the prohibition on class actions, by the restrictions on punitive damages, and by the arbitrator's authority to require the employee to pay Circuit City's attorney fees and costs.
Ramirez v. Circuit City Stores, Inc., 90 Cal. Rptr. 2d 916 (Ct. App. 1999).
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Subsequent treatment of decisions reported on in earlier issues:
Alejo v. City of Alhambra (November 1999 issue), petition for review filed (Dec. 6, 1999).
Circuit City Stores, Inc. v. Ahmed (December 1999 issue), now reported at 195 F.3d 1131 (9th Cir. 1999).
Enyart v. City of Los Angeles (December 1999 issue), now reported at 76 Cal. App. 4th 499 (1999).
Gilbrook v. City of Westminster (June 1999 issue), cert. denied, 1999 WL 753937, 893584 (Dec. 13, 1999).
Gonzalez v. Hughes Aircraft Employees Federal Credit Union (March 1999 issue), review dismissed (Dec. 15, 1999). The decision remains uncitable.
Interstellar Starship Serv., Ltd. v. Epix, Inc. (August 1999 issue), petition for certiorari filed (Nov. 9, 1999).
Keimer v. Buena Vista Books, Inc. (November 1999 issue), petition for review filed (Dec. 6, 1999).
Kelsey v. Waste Management of Alameda County (December 1999), now reported at 70 Cal. App. 4th 590 (1999).
Kleitman v. Superior Court (September 1999), review denied (Nov. 10, 1999).
Lockheed Martin Corp. v. Network Solutions, Inc. (November 1999), now reported at 194 F.3d 980 (9th Cir. 1999).
Lupash v. City of Seal Beach (December 1999 issue), petition for review filed (Nov. 16, 1999).
Real v. City of Compton (September 1999 issue), review denied (Nov. 10, 1999).
Roberts v. Sentry Life Ins. (December 1999 issue), now reported at 76 Cal. App. 4th 375 (1999), rehearing denied (Dec. 13, 1999).
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