The law in Harassment and Discrimination has evolved over the last few years. Below are some new cases that represent that evolution.
Daniel v. Wayans, (2017) 8 Cal. App. 5th 367
A few years ago, I described a case, in which language and actions that normally would have been considered harassment based on sex, were not considered as such because the circumstances did not support those claims. In Lyle v. Warner Bros. Television Productions, the California Supreme Court said that when harassing language and acts were part of a creative process that they would not necessarily create a hostile work environment. Lyle worked with the writers for the TV show “Friends”. She was told that the writers used vulgar, sex-based language to develop the show’s content. The writers discussed “blowjobs”, described the types of women they liked to have sex with, drew pictures of naked women, simulate masturbation, described how they would have sex with female caste members, among other things. Lyle lost her case.
In a case brought by an African American who was an extra on the movie set of A Haunted House 2, Daniel claimed that the creators of the movie compared him to a black cartoon character in a demeaning way, referred to him has a “Nigga”, and mocked his “afro”. Under most circumstances, Daniel probably would have won his case, but not here. One of the major underlying themes of the case was the protection of words and acts that contributed to the creative process. Mr. Daniel lost his case and was required to pay for the Defendants’ attorneys’ fees.
M.F. v. Pacific Pearl Hotel Management LLC, (2017) 16 Cal. App. 5th 693
Discrimination by non-employees who interact with employees may lead to discrimination & harassment liability for the employer. If an employer is aware of such conduct by non-employees in the employer’s work place, then the employer has a duty to adjust the conditions in the work place to prevent discrimination and harassment.
In the Pacific Pearl case, the plaintiff was a housekeeper. In her complaint, she claimed that a drunken trespasser raped her and that the employer knew, or should have known, that the trespasser was on the premises and behaving very badly. Apparently, the trespasser had aggressively demanded sexual favors from another housekeeper about an hour before the rape. The trial court dismissed the case before the discovery phase. The appellate court said that the case should proceed to the discovery phase because the complaint properly raised the employer’s duty to prevent third-party harassment.
Cornell v. Berkeley Tennis Club, (2017) 18 Cal. App. 5th 908
Is obesity a disability? The short answer is “maybe”. Under California law, if obesity has a physiological basis, i.e., an underlying medical or genetic issue, then it can be a disability. The case law has changed overtime time to allow more potential disability claims based on obesity.
Cornell weighed 350 pounds and was five feet five inches tall. She had been diagnosed as severely obese since childhood. At the time of her termination, she had worked for the Berkeley Tennis Club for about 16 years. She first worked as a part time employee in 1997. After graduation from UC Berkeley in 2001, she worked a fulltime schedule. Until management changed in 2012, she had received good performance reviews. The Club terminated her in May of 2013.
A new manager took over in the Spring of 2012. He wanted the Club workers to start wearing uniforms. Cornell told him that finding a uniform to fit her might be difficult. She said he mockingly laughed and told her “Oh yeah”. Later, he asked her if she was going to get weight loss surgery and asked her many times what her size was. She always replied, “5X to 7X.” When the uniforms arrived, he told everyone to get one. The largest was 2X, which humiliated Cornell. The merchandiser told her that the uniforms did not come in her size.
Cornell worked the night shift but also routinely filled in for the day shift. The new manager drastically reduced her day shift duties. The retiring bookkeeper suggested that Cornell take over her duties, but the new manager did not offer Cornell that job; instead, he hired a bookkeeper with 13 years’ experience who was not obese. Soon after, he reduced Cornell’s night shifts and gave those hours to a petite woman, who he paid one dollar per hour more. Another employee saw Cornell crying, and Cornell explained that she lost hours and was being paid less than the new employee for the same work. The other employee spoke to the manager, who said, “Well, just look at her, she’s going to be jealous of anybody and she just isn’t a good fit and I’m going to have to look for someone else.”
At a Club board meeting, at which the Board would discuss Cornell and other issues, an employee found a tape recorder hidden in a way designed to capture what was said in the meeting. The employee told management and removed the recorder. After the meeting, the employee saw Cornell put her hand near the location of where the recorder had been. Cornell said that she was only looking for cleaning supplies to do a post-meeting clean up. The Club terminated her for planting the recorder.
The trial court dismissed the entire case on a Motion for Summary Judgement. The appellate court ruled that her claims for disability discrimination and harassment should go to trial because the Club could not disprove that her obesity was physiological.
This article also appears in Big Blend’s Parks & Travel Magazine:
S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
(858) 408-7543 (fax)