 |
|
|
|
December 2002 
Vol. 8 No. 3 ISSN 1087-6219
Copyright and Trademark Notice | Disclaimer
Use the Newsletter Link to request a free e-mail subscription to the newsletter.
The Second District Court of Appeal in Los Angeles has ruled that an employer is not liable under the Fair Employment and Housing Act (FEHA) for a customer's sexual harassment of its employees. Federal law under Title VII differs.
Raquel Salazar drove a bus for Diversified Paratransit, which provided transportation for developmentally disabled adults and children. Salazar and three other female drivers complained about passenger Rocha's sexual misconduct, which included exposing himself and inappropriate touching. One day, Rocha physically attached Salazar, and had to be restrained by two male drivers. Two days later Salazar quit.
FEHA makes employers liable for harassment by co-employees if they knew or should have known about it and failed to take immediate and appropriate corrective action. Although FEHA also imposes a general duty to prevent harassment, the reference to employee in the earlier specific provision also limits that duty.
A contrary interpretation would raise a question about whether it was workable. An employer has managerial and disciplinary authority over its employees, but not over clients and customers.
Although the Legislature enacted a preamble to the statute that refers to an intent to protect against harassment by an employer's “clientele,” neither the language of the statute nor the legislative history bear out that intent.
The outcome would probably be different in federal court. An EEOC regulation promulgated pursuant to Title VII states that an employer may be liable for acts of non-employees if it knew or should have known about the conduct and failed to take immediate and appropriate corrective action. 29 C.F.R. § 1604.11(e). The Ninth Circuit has relied on the regulation to impose liability on employers for non-employee conduct. See Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754 (9th Cir. 1997).
Salazar v. Diversified Paratransit, Inc., 2002 WL 31412544 (Cal. Ct. App. Oct. 28, 2002).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The California Supreme Court has ruled that relatives of the victim of medical malpractice cannot sue for negligent infliction of emotional distress, unless they had a contemporaneous understanding of the nature of the malpractice.
Nita Bird went into the hospital for implantation of a device to facilitate delivery of chemotherapeutic agents. Her physicians nicked an artery, which resulted in her being in distress for several hours. Although she was out of sight most of that time, her two adult daughters did see her being pushed down the hallway. She appeared bright blue, and her feet were way up in the air. The daughters sued for negligent infliction of emotional distress.
The Supreme Court first recognized bystander liability in Dillon v. Legg, 68 Cal. 2d 728 (1968). After 20 years of uncertainty about the extent of liability under Dillon's flexible guidelines, the Court imposed three mandatory requirements for such claims in Thing v. La Chusa, 48 Cal. 3d 644 (1989). A bystander plaintiff may only recover if she “(1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress.”
Bird's daughters did not satisfy the second requirement. They had no sensory perception of the nicking of the artery when it occurred. Although they argued that the injury-producing event was the physicians' failure to diagnose and treat the damaged artery promptly, misdiagnosis is beyond the awareness of lay bystanders, except in obvious cases. They were not contemporaneously aware of any error in the diagnosis and treatment that followed the nicking.
Bird v. Saenz, 28 Cal. 4th 910 (2002).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The First District Court of Appeal in San Francisco has ruled that a manager who merely acquiesces in a foreign sovereign's discriminatory decision does not have the intent necessary to prove discrimination.
William West went to work for a Bechtel affiliate in Saudi Arabia for what he thought would be a two-year stint. The affiliate was doing a project for the Saudi Royal Commission. After West started work, the Royal directed the manager of the affiliate to replace West because he was over 50 years old. The manager complied.
In West's ensuing age discrimination case, Bechtel claimed that the Royal Commission's directive constituted a neutral business reason for its action. The Court of Appeal agreed that the Royal Commission's discriminatory intent could not be imputed to Bechtel. Since there was no evidence that the manager of the affiliate himself had a discriminatory motive, there was no basis for imposing liability on Bechtel.
West v. Bechtel Corp., 96 Cal. App. 4th 966 (2002).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The Ninth Circuit has ruled that the sexual orientation of a victim of sexual harassment is irrelevant under Title VII. It is enough that the harasser engaged in severe or pervasive unwelcome physical conduct of a sexual nature.
Medina Rene, an openly gay man, worked as a butler for the MGM Grand in Las Vegas. His fellow male employees subjected whistled and blew kisses at him, called him sweetheart, forced him to look at pictures of naked men having sex, and grabbed and poked him. He believed that they acted that way because he was gay.
Although Title VII does not expressly prohibit sexual harassment, it is a form of sex discrimination prohibited by the statute, and includes physical conduct of a sexual nature. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
The fact that Rene believed that his fellow workers were motivated by his sexual orientation does not distinguish the case from others where similar conduct constituted a Title VII violation. The targeting of body parts linked to Rene's sexuality was sufficient to bring the harassment within Title VII's prohibition.
Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002).
[_private/discuss_this_case_on_the_appella.htm]Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The Ninth Circuit has ruled that federal law preempts local ordinances that banned ATM fees to non-customers.
In the fall of 1999, Santa Monica and San Francisco enacted similar ordinances that prohibited imposition of ATM fees on non-depositors. Financial institutions claimed that federal law preempted the ordinances.
Federal laws and regulations applicable to federal savings and loan associations leave no room for state regulation of ATM fees. Application of the ordinances to national banks is preempted, because they conflict with federal authorization to impose the banned fees.
Although the federal Electronic Fund Transfer Act (EFTA) allows some state regulation in the area of consumer protection, bans on ATM fees are not the type of consumer protection contemplated. The EFTA only contemplated anti-fraud and disclosure provisions.
In any event, the anti-preemption provision of the EFTA is limited to the effect of the EFTA. It does not protect state and local laws from preemption by the laws that establish and regulate national banks and federal savings and loan associations.
Bank of America v. City and County of San Francisco, 2002 WL 31399026 (9th Cir. Oct. 25, 2002).
[_private/discuss_this_case_on_the_appella.htm]Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
The San Diego division of the Fourth District Court of Appeal has upheld Costco's restrictions on expression as reasonable time, place and manner restrictions.
Costco prohibits all expressive activity on 34 days during the year on which it has historically experienced high customer traffic. It also bars any individual or organization from using its property for more than five days in a 30-day period. It prohibits all expressive activity at its stand-alone facilities, where it does not share a parking lot with other stores.
The Gallants are in the business of gathering voter signatures for initiatives, and registering voters. Costco facilities are particularly fertile ground for the Gallants, because they have only one entrance and exit. After a dispute arose between Costco and the Gallants over Costco's restrictions, Costco sued for a declaration that its restrictions were valid. The Gallants cross-complained for an injunction against the restrictions.
The free speech guarantee of the California Constitution, unlike its federal counterpart, applies to private property owners where they hold their property open to the general public, and the property serves as a favored forum for public congregation. Even in those circumstances, the property owner may impose reasonable time, place and manner restrictions.
The 34-day and the 5/30 restrictions were reasonable time, place and manner restrictions. They were responsive to legitimate concerns about business disruption, were content neutral, and left sufficient time for expressive activity.
The complete ban on expressive activity at stand-alone stores was valid, because they were not public forums. Costco's interest in maintaining control over those properties outweighed the public's interest in using them as a forum for expression.
Costco Cos. v. Gallant, 96 Cal. App. 4th 740 (2002)
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
Subsequent treatment of decisions reported on in earlier issues:
Akers v. County of San Diego (February 2002 issue), now reported at 95 Cal.App.4th 1441.
Brewster v. Shasta County (February 2002 issue), cert. denied, 123 S.Ct. 75 (2002).
Burns v. Nature's Best (February 2002 issue), review granted and re-transferred to Court of Appeal (May 1, 2002). The decision may no longer be cited. Cal. R. Ct. 976(d).
Department of Health Services v. Superior Court (January 2002 issue), review granted (Feb. 13, 2002). The decision may no longer be cited. Cal. R. Ct. 976(d).
Douglas v. California Department of Youth Authority (January 2002 issue), cert. denied, 122 S.Ct. 2591.
Echazabal v. Chevron USA, Inc. (June 2000 issue), reversed, 122 S.Ct. 2045 (2002).
Gerber v. Hickman (October 2001 issue), reversed on rehearing en banc, 291 F.3d 617 (9th Cir. 2002), cert. denied, 2002 WL 31108721 (Nov. 18, 2002).
Humphrey v. Memorial Hospitals Ass'n (March 2001 issue), cert. denied, 122 S.Ct. 1592 (2002).
Intel Corp. v. Hamidi (January 2002 issue), review granted (Mar. 27, 2002). The decision may no longer be cited. Cal. R. Ct. 976(d).
Lavine v. Blaine School Dist. (August 2001 issue), cert. denied, 122 S.Ct. 2663 (2002).
Leisek v. Brightwood Corp. (February 2002 issue), now reported at 278 F.3d 895 (9th Cir. 2002).
Pavlovich v. Superior Court (September 2001 issue), rev'd, 2002 WL 31641714 (Nov. 25, 2002).
Ryan v. California Interscholastic Federation-San Diego Section (January 2002 issue), review denied (Apr. 10, 2002).
Washington Legal Foundation v. Legal Foundation of Washington (February 2001 issue), cert. granted, 122 S.Ct. 2355 (2002).
Table of Cases to check current
status of decisions.
Subject Index
Top of this Page
Copyright © 2004 Calvin House. Appellate Counsellor® and Appellate Decisions Noted® are registered marks used in commerce by Calvin House since 1995. All rights to those marks are claimed. |
Calvin House |
