Dhs v. Superior Court, C034163.

Citation113 Cal.Rptr.2d 878,94 Cal.App.4th 14
Decision Date29 November 2001
Docket NumberNo. C034163.,C034163.
CourtCalifornia Court of Appeals
PartiesSTATE DEPARTMENT OF HEALTH SERVICES, Petitioner, v. The SUPERIOR COURT of Sacramento County, Respondent; Theresa v. McGinnis, Real Party in Interest.

Bill Lockyer, Attorney General, Davis S. Chaney, Senior Assistant Attorney General, James M. Schiavenza, Lead Supervising Deputy Attorney General, Jacob Appelsmith, Supervising Deputy Attorney General, Barbara A. Morris and Nina Thompson, Deputy Attorneys General, for Petitioner.

No appearance for Respondent.

Quackenbush & Quackenbush, William C. Quackenbush; Christopher H. Whelan, for Real Party in Interest.

HULL, J.

In two companion cases, Burlington Industries v. Ellerth (1998) 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (Burlington) and Faragher v. City of Boca Raton (1998) 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (Faragher), the United States Supreme Court outlined a defense available to an employer sued for sexual harassment under 42 U.S.C. § 2000e-2, subdivision (a) (hereafter Title VII). Specifically, if the offending conduct is committed by a supervisor, and if no tangible employment action is taken against the employee, the employer may defend against liability or damages by demonstrating that (1) the employer exercised reasonable care to prevent and promptly correct sexually harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of the corrective or preventive opportunities provided by the employer or otherwise failed to avoid harm. (Burlington, supra, 524 U.S. at pp. 764-765, 118 S.Ct. at pp. 2270-2271, 141 L.Ed.2d at p. 655; Faragher, supra, 524 U.S. at pp. 807-808, 118 S.Ct. at pp. 2292-2293, 141 L.Ed.2d at pp. 688-689.)

In this case, petitioner State Department of Health Services (DHS) seeks a determination that the Burlington/Faragher defense is equally available in cases brought under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.; further undesignated statutory references are to the Government Code). Because FEHA is distinguishable from Title VII in several critical respects, we conclude this defense is inapplicable to state claims.

FACTS AND PROCEDURAL HISTORY

Theresa V. McGinnis worked at DHS under the supervision of Cary Hall. According to McGinnis's complaint, Hall sexually harassed her over an extended period of time, beginning in mid-1995. Hall's conduct ranged from inappropriate comments to physically touching McGinnis.

McGinnis confided in a coworker, but did not report Hall's behavior to management until November 1997. When she brought the matter to the attention of Hall's second-line supervisor, the supervisor reported the allegations to the DHS, Office of Civil Rights. That office investigated the matter, and concluded Hall had violated the DHS policy against sexual harassment. Disciplinary action was commenced against Hall, and he ultimately retired.

McGinnis filed a complaint against Hall and DHS that alleged causes of action for sexual harassment and sex discrimination.

DHS moved for summary judgment or summary adjudication, arguing in part that the Burlington/Faragher defense applied. DHS had developed and circulated an employee manual describing its policy against sexual harassment and its complaint procedure. DHS noted it had also provided sexual harassment training programs for its employees, which McGinnis attended. Invoking the Burlington/Faragher defense, DHS argued that, since (1) no adverse action had been taken against McGinnis, (2) it had developed a comprehensive policy and program to prevent and combat sexual harassment, and (3) McGinnis had not availed herself of those measures in a timely manner, it should not be held vicariously liable for Hall's harassing conduct.

McGinnis responded that the Burlington/Faragher defense available in Title VII cases should not be judicially grafted onto cases brought under FEHA. She asserted this conclusion was mandated by the significant differences between the two statutory schemes.

The trial court denied DHS's motion for summary judgment, and denied summary adjudication on the causes of action for sexual harassment and sex discrimination. Noting these two claims appeared to be duplicative, the court ruled: "[DHS] here seeks to assert an `affirmative defense' articulated for application in Title VII actions by the U.S. Supreme Court in Faragher and Burlington. The parties agree that no California appellate decision has considered the principle under California law. The Supreme Court's reasoning in the respondeat superior setting of Title VII is persuasive. At least in the absence of appellate authority, the application of that same reasoning to a FEHA harassment claim, grounded in strict liability against the employer, is a policy decision best left for the legislature. Therefore the Court will not apply Faragher and Burlington to this case."

DHS filed a petition for writ of mandate, prohibition, or other appropriate relief, essentially seeking a declaration that the Burlington/Faragher defense in fact applies to FEHA cases. DHS asserts the trial court should be ordered to apply the elements of this defense and reconsider its denial of the summary judgment motion. Even if summary judgment is again denied, DHS asserts, the applicability of the defense will be relevant in devising jury instructions.

We issued an alternative writ of mandate to determine whether the Burlington/Faragher defense applies to actions brought under FEHA. We consider that now.

DISCUSSION

Under Title VII, it is an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...." (42 U.S.C. § 2000e-2, subd. (a)(1).)

Sexual harassment is not expressly mentioned in the statute. However, the Guidelines of the Equal Employment Opportunity Commission (EEOC) and federal case law recognize sexual harassment as a type of sex discrimination and a violation of Title VII. (29 C.F.R. § 1604.11 (2000); Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49, 59). Sexual harassment may take one of two forms. In quid pro quo harassment cases, an employer demands sexual favors from an employee in exchange for a job benefit. In hostile work environment cases, severe or pervasive harassment so alters the terms or conditions of employment as to be actionable. (Hicks v. Gates Rubber Co. (10th Cir.1987) 833 F.2d 1406, 1413.)

In Burlington, supra, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 a hostile work environment case, the Supreme Court analyzed the circumstances under which an employer might be held vicariously liable for a supervisor's harassing conduct. The court noted that, under Title VII, the term employer is defined as including agents, and Congress had directed courts to interpret Title VII in accordance with agency principles. (524 U.S. at p. 754, 118 S.Ct. at p. 2265, 141 L.Ed.2d at p. 648.) The Supreme Court reviewed those principles, and noted that "[t]he general rule is that sexual harassment by a supervisor is not conduct within the scope of employment." (Id. at. p. 757, 118 S.Ct. at p. 2266, 141 L.Ed.2d at p. 650.)

However, the court continued, under the Restatement Second of Agency, section 219(2), scope of employment is not the only test for imposing vicarious liability. (Burlington, supra, 524 U.S. at p. 758, 118 S.Ct. at p. 2267, 141 L.Ed.2d at p. 650.) For example, liability may be imposed when an agent is the alter ego of the employer, or when the conduct violates a nondelegable duty of the employer, but the court found neither of these situations applicable in Burlington. (Id. at. p. 758, 118 S.Ct. at p. 2267, 141 L.Ed.2d at p. 651.) The court instead focused its attention on another basis for liability, that is, those instances when a servant is aided in accomplishing the tort by the existence of the agency relation. (Id. at pp. 758-760, 118 S.Ct. at pp. 2267-2268, 141 L.Ed.2d at pp. 651-652.)

The court held that, when a supervisor makes a tangible employment decision, i.e., one that "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits" (Burlington, supra, 524 U.S. at p. 761, 118 S.Ct. at p. 2268, 141 L.Ed.2d at pp. 652-653), the imposition of vicarious liability may be appropriate (id. at pp. 762-763, 118 S.Ct. at pp. 2269-2270, 141 L.Ed.2d at p. 653). "Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control." (Id at p. 762, 118 S.Ct. at p. 2269, 141 L.Ed.2d at p. 653.) Thus, "a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer." (524 U.S. at p. 762, 118 S.Ct. at p. 2269, 141 L.Ed.2d at p. 653.)

However, when no tangible employment action is taken, the situation is less clear. The Supreme Court noted: "Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms. Were employer liability to depend in part on an employer's effort to create such procedures, it would effect Congress' intention to promote conciliation rather than litigation in the Title VII context [citation], and the . .. policy of encouraging the development of grievance procedures. [Citations.] To the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would also serve ...

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