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New Trends and Cases in Workplace Harassment Law

  Workplace harassment occurs when an employee is picked on or abused at work because he or she is in a protected class.  Typically in the past, harassment cases have been male-on-female sexual harassment. As seen below, we are now seeing different types of harassment and increased legislative protection.

  The California legislature passed a new harassment law to protect against “Field Rape”. Apparently, harassment and rape occur all too often in the agricultural work place.  As a result, farm labor contractors must take an hour of sexual harassment training each year.  Additionally, the Labor Commissioner must deny them contractors’ licenses, if a court or agency finds that a contractor, or a supervisor working for a contractor, committed sexual harassment within the preceding 3 years.  Likewise, the Labor Commission may revoke or suspend contracting licenses for the same findings.

  In 2014, a new law in California revised the sexual harassment laws that appeared to require harassment to be motivated by a sexual desire.  Before that change, a male iron worker sued his boss for calling him sexually vulgar things and describing sex acts he would perform on him.  (Kelley v. Conco Companies, (2011) 196 Cal. App. 4th 191.)  The iron worker lost his claims for harassment because he could not prove that his boss had acted with sexual desire.  Presumably, the descriptions were simply considered rough work place banter. Under the new law, an employee won a case that he probably would have lost before.  (Taylor v. Nabors Drilling USA, LP, (2014) 222 Cal. App. 4th 1228.) The employee worked on an oil rig. His boss called him “gay porn star”, “fagot”, “queer”, etc. and simulated masturbation. After a jury verdict, the appellate court affirmed $150,000.00 in damages and $680,520.00 in attorneys’ fees.

  In yet another case of male-on-male harassment, the employee won where sexual desire was proved. (Lewis v. City of Benicia, (2014) 224 Cal.App.4th 1519.) The employee’s boss subjected him to months of gift purchases, paid lunches, computer pornography, and jokes about sex. Those acts rose to the level of pervasive sexual harassment that altered the work environment.

  A more traditional male-on-female case had an unusual twist to it.  (State of Arizona v. ASARCO LLC, 2014 WL 6918577 (9th Cir. 2014).)  The trial court told the jury that it could only award the employee $1 in damages, which it did.  It then awarded over $800,000.00 in punitive damages. The Court reduced that amount to $300,000.00.
The award is unusual because the United States Supreme Court had ruled that punitive damages should only rarely exceed the damages awarded to the plaintiff by a multiple of 10. In the above case, that would have meant that the employee would have only won only $10 is punitive damages. The Ninth Circuit said that harassment case punitive damages were governed by a different law and were not limited in the same way. It affirmed the $300,000.00 punitive damage award.

  Franchisors have at least some protection when a franchisee harasses one of its employees.  (Patterson v. Domino’s Pizza, LLC, 2014 WL 4236175 (Cal. S. Ct. 2014).) Dominos did not have a direct relationship with the employee of the franchisor.  Its franchise agreement says that it had no agency relationship with the franchisee and had no interaction or control over its employees. The California Supreme Courts said: “the imposition and enforcement of a uniform marketing and operational plan cannot automatically saddle the franchisor with responsibility for employees of the franchisee who injure each other on the job.”  Thus, franchisors generally should not be liable for the way a franchisee treats its employees.

  In a recent Los Angeles trial court case, an employee won a racial harassment judgment. James Duffy worked for the City of Los Angeles Recreation and Parks Department.  While at a motivational speech attended by 30 new employees, a supervisor said that he hated white people. All in attendance turned to look at Mr. Duffy, who was the only white person there.  Mr. Duffy also suffered bad job assignments and other forms of harassment at the hands of other Recreation and Parks employees. A jury awarded him $3.3 million. That case is now on appeal.

S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
(858) 292-0792
(858) 408-7543 (fax)

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