California Firefighter Sexual Harassment Lawsuit

"Since 1985, the Fair Employment and Housing Act (FEHA) has prohibited sexual harassment of an employee. (See Gov. Code, 12940, subd. (j)(1).)" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1042 (Hughes).) Government Code section 12940, subdivision (j)(1) provides that "an entity shall take all reasonable steps to prevent harassment from occurring . . . ," and "an employer may . . . be responsible for the acts of nonemployees, with respect to sexual harassment of employees . . . where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action." (Ibid.) "In 2003, the Legislature amended the FEHA to state that employers are potentially liable when third party nonemployees (e.g., the employer's customers or clients) sexually harass their employees. (Stats. 2003, ch. 671, 2, amending Gov. Code, 12940, subd. (j)(1).)" (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 918, (Carter).) "California's FEHA 'recognizes two theories of liability for sexual harassment claims . . . ". . . quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances . . . and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment." ' " (Hughes, supra, 46 Cal.4th at p. 1043.) Under a hostile environment theory, "a workplace may give rise to liability when it 'is permeated with "discriminatory sex-based intimidation, ridicule, and insult," , that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." ' " (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 (Lyle).) Thus, "the hostile work environment form of sexual harassment is actionable only when the harassing behavior is pervasive or severe. . . . To prevail on a hostile work environment claim under California's FEHA, an employee must show that the harassing conduct was 'severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.' " (Hughes, supra, 46 Cal.4th at p. 1043, ) To be actionable, " 'a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.' " (Lyle, at p. 284.) "Conduct that is severe or pervasive enough to create an objectively hostile or abusive work environment is unlawful, even if it does not cause psychological injury to the plaintiff." (Id. at p. 283.) "Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances . . . ," and "the factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred." (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609, 610 (Fisher).) "With respect to the pervasiveness of harassment, courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. That is, when the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based on working conditions." (Lyle, supra, 38 Cal.4th at pp. 283-284.) When the severity of harassment is at issue " ' "that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. . . . The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff 's position would find severely hostile or abusive." ' " (Lyle, supra, 38 Cal.4th at p. 283.) The California Supreme Court has observed that "an employee seeking to prove sexual harassment based on no more than a few isolated incidents of harassing conduct must show that the conduct was 'severe in the extreme,' " but "a single harassing incident involving 'physical violence or the threat thereof ' may qualify as being severe in the extreme." (Hughes, supra, 46 Cal.4th at p. 1043.) "Generally . . . sexual conduct that involves or is aimed at persons other than the plaintiff is considered less offensive and severe than conduct that is directed at the plaintiff." (Lyle, supra, 38 Cal.4th at p. 284.) "In the context of sex discrimination, prohibited harassment includes 'verbal, physical, and visual harassment, as well as unwanted sexual advances.' " (Lyle, supra, 38 Cal.4th at p. 280.)