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January 2002 
Vol. 8 No. 1 ISSN 1087-6219
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The First District Court of Appeal in San Francisco has answered yes to the following question: “Can staring at a fellow employee … constitute actionable sexual harassment under the Fair Employment and Housing Act (FEHA)?” However, substantial additional unlawful conduct must precede the staring in order to make it actionable.
Michelle Birschtein worked for New United Motor on its assembly line. Forklift driver George Bonillia repeatedly asked her for dates and made inappropriate sexual comments to her. After Birschtein complained to her supervisor about the conduct, Bonillia stopped speaking to her. Instead, he would drive to her work station five or more time a day, and stare at her for several minutes.
Only the staring took place within the applicable limitations period. New United Motor did not take any corrective action with respect to the staring. The Superior Court granted summary judgment to the employer, ruling that there was insufficient evidence of severe and pervasive conduct. The Court of Appeal reversed.
Offensive conduct may constitute sexual harassment so long as the victim's gender was a substantial factor in the conduct. The conduct need not be overtly sexual in nature. Therefore, the staring could qualify as sexual harassment.
The continuing violation doctrine permits an employment discrimination plaintiff to recover damages for unlawful acts outside the limitations period so long as (1) the acts are sufficiently similar in kind to acts within the period, (2) the acts have occurred with reasonable frequency, and (3) the acts have not acquired the degree of permanence that would lead a reasonable employee to believe that further efforts to resolve the matter would be futile. The overtly sexual conduct outside the limitations period was sufficiently related to the staring to raise a factual issue as to the applicability of the continuing violation doctrine.
Birschtein v. New United Motor Mfg., Inc., 92 Cal. App. 4th 994 (2001), petition for review filed (Nov. 16, 2001).
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The Third District Court of Appeal in Sacramento has ruled that an injunction against unwanted email does not violate free speech principles. The sender's use of a company's proprietary email system constituted common law trespass to chattels.
Intel maintains a proprietary email system for use of its employees. The email addresses are confidential. Kourosh Kenneth Hamidi, a former Intel employee, obtained the email address list and sent emails to between 8,000 and 35,000 Intel employees on several occasions. He ignored Intel's written request to stop, and took steps to evade security measures. Intel's employees had to spend significant amounts of time dealing with Hamidi's activities.
Hamidi claimed that he had formed an organization to allow Intel employees to air grievances and concerns, and that Intel's email system was an important forum for those activities. His emails told recipients that he would remove them from future mailings upon request. 450 employees made such requests.
Trespass requires proof of interference with the plaintiff's possession of its personal property. Intel established this by showing that Hamidi disrupted its business through use of its proprietary email system.
Issuing an injunction to prevent further email transmissions did not violate either state or federal free speech principles.
The federal guarantee only applies to state action. Although judicial action to enforce private rights may sometimes constitute sufficient state action to trigger constitutional protection, enforcement of neutral trespass laws does not. Compare Shelley v. Kraemer, 334 U.S. 1 (1947) with Lloyd v. Tanner, 407 U.S. 551 (1972).
Although the California free speech guarantee sometimes applies to private conduct, it does so only where the private actor has made its property freely and openly accessible to the public. Golden Gateway Center v. Golden Gateway Tennants Ass'n, 26 Cal. 4th 1013 (2001). Intel's email system was not freely and openly accessible to the public. It only invited the public to use the system for business purposes.
Intel Corp. v. Hamidi, 114 Cal. Rptr. 2d 244 (Ct. App. 2001).
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The Third District Court of Appeal in Sacramento has ruled that differences between state and federal law make the defense recognized in the United States Supreme Court's Faragher decision unavailable in cases based on the California Fair Employment and Housing Act (FEHA).
Theresa McGinnis worked for the California Department of Health Services under the supervision of Cary Hall. Hall sexually harassed McGinnis over an extended period of time. McGinnis did not report the conduct to management for two years, even though the Department had established a procedure for handling sexual harassment complaint. Once McGinnis reported Hall's conduct, the Department took prompt action, and Hall ultimately retired.
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the United States Supreme Court established a defense for employers sued for sexual harassment under Title VII. Even if a supervisor engages in the offensive conduct, there is no liability if (1) the employer exercised reasonable care to prevent and promptly correct harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of corrective or preventive opportunities provided by the employer.
Although California courts frequently follow Title VII precedents when they interpret FEHA, such precedents are not relevant where state law is different. The FEHA provisions about harassment differ from Title VII. Government Code section 12940 provides that the employer is liable for harassment “by an employee other than an agent or supervisor” only if it knew or should have know about the conduct and did not take immediate and appropriate corrective action.
Through application of the principle of expressio unius est exclusio alterius, there is no such limitation on liability for harassment by a supervisor. Therefore, the employer is strictly liable whenever a supervisor engages in harassing conduct.
Department of Health Services v. Superior Court, 94 Cal. App. 4th 14 (2001).
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The Ninth Circuit has reaffirmed that state entities who accept federal funds waive their Eleventh Amendment defense to Rehabilitation Act claims.
The California Youth Authority refused to hire Dossey Douglas because he was color-blind. He sued under the Americans with Disabilities Act and the Rehabilitation Act. The federal district court in Sacramento dismissed the case on statute of limitations grounds. The Ninth Circuit found the action timely, and considered the Authority's argument that the Eleventh Amendment barred both claims.
In Board of Trustees v. Garrett, 531 U.S. 356 (2001), the Supreme Court ruled that the Eleventh Amendment bars claims for money damages under Title I of the ADA. However, the Ninth Circuit remanded Douglas's ADA claim to the district court to determine whether the Authority had waived its Eleventh Amendment immunity through conduct that was incompatible with an intent to preserve the immunity.
In Clark v. State of California, 123 F.3d 1267 (9th Cir. 1997), the Ninth Circuit had ruled that the Eleventh Amendment did not bar damages claims under the Rehabilitation Act. It held both that the acceptance of federal funds waived the immunity, and that Congress had validly abrogated the immunity pursuant to section 5 of the Fourteenth Amendment.
Although the abrogation ground is “of questionable validity” in light of Garrett, the waiver ground remains valid. The Rehabilitation Act states that a state shall not be immune under the Eleventh Amendment for suits brought to enforce the Act. By accepting federal funds in the face of such a provision, the Authority waived any Eleventh Amendment immunity that it may have had.
Douglas v. California Department of Youth Authority, 271 F.3d 812 (9th Cir. 2001), modified (Nov. 26, 2001).
The San Diego division of the Fourth District Court of Appeal has ruled that due process rights do not attach to an application for eligibility to participate in interscholastic sports.
John Ryan completed high school in Australia, and then sought to repeat 12th grade in the United States to enhance his prospects for admission to an American college. Word of his interest made its way to the athletic department at Rancho Buena Vista High School, which assisted him in getting enrolled.
The Interscholastic Federation, which administers interscholastic athletics in California, ruled that Ryan was ineligible to participate in athletics. The San Diego superior court decided that the action deprived Ryan of due process. The Court of Appeal reversed.
The federal due process clause did not apply because California law does not create a property interest in extracurricular activities. Although there is a right to a free public education, there is no independent right to the extracurricular component of a free public education.
The California due process clause did not apply because Ryan did not identify any statute that conferred a right to participate in interscholastic athletics. If due process applied to Ryan's circumstances, then any student who did not make the varsity team, or did not get a role in the school play, would have a due process claim.
Ryan v. California Interscholastic Federation-San Diego Section, 2001 WL 1647347 (Cal. Ct. App. Dec. 24, 2001).
Subsequent treatment of decisions reported on in earlier issues:
Connerly v. State Personnel Bd. (October 2001 issue), now reported at 92 Cal. App. 4th 16 (2001).
Devereaux v. Abbey (October 2001 issue), now reported at 263 F.3d 1070 (9th Cir. 2001).
Echazabal v. Chevron USA, Inc. (June 2000 issue), cert. granted, 122 S.Ct. 456 (2001).
Gerber v. Hickman (October 2001 issue), rehearing en banc granted, opinion vacated (Dec. 4, 2001).
Headwaters Forest Defense v. County of Humboldt (May 2000 issue), vacated and remanded, 122 S.Ct. 24 (2001).
Holmes v. California Nat'l Guard (July 2001 isssue), review denied (Oct. 17, 2001).
Little v. Auto Stiegler, Inc. (October 2001 issue), review granted (Dec. 19, 2001) The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Mastro v. Petrick (October 2001 issue), now reported at 93 Cal. App. 4th 83 (2001), modified (Oct. 23, 2001).
Pavlovich v. Superior Court (September 2001 issue), review granted (Dec. 12, 2001). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Romero v. Superior Court (July 2001 issue), review denied (Sep. 26, 2001).
Streit v. County of Los Angeles (February 2001 issue), cert. denied, 122 S.Ct. 59 (2001).
Washington Legal Foundation v. Legal Foundation of Washington (February 2001 issue), reversed en banc, 271 F.3d 835 (9th Cir. 2001).
Whitfield v. Hackler & Koch, Inc. (September 2000 issue), review dismissed (Oct. 24, 2001).
Wittkopf v. County of Los Angeles (August 2001 issue), review granted. The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
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