California laws employee harassment and Landmark Cases

The Fair Employment and Housing Act (FEHA) prohibits harassment of an employee because of race. (Gov. Code, 12940, subd. (j)(1).) "Harassment" is defined by regulation to include "verbal harassment, e.g., epithets, derogatory comments or slurs" (Cal. Code Regs., tit. 2, 7287.6, subd. (b)(1)(A)), and "physical harassment, e.g., assault, impeding or blocking movement, or any physical interference with normal work or movement when directed at an individual on a basis enumerated in the Act" (Cal. Code Regs., tit. 2, 7287.6, subd. (b)(1)(B)). "As the regulation implies, harassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives." (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63 (Janken).) Thus, "commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will or who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment." (Id. at pp. 64-65.) In order to state a claim for racial harassment under FEHA, a plaintiff must plead the following elements: (1) she belongs to a protected group; (2) she was subjected to harassment; (3) the harassment was based upon her race or nationality; (4) the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283; Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 608 (Fisher).) To be actionable under FEHA, the harassment must be "sufficiently severe or pervasive" to create a hostile or abusive working environment. (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 462 (Etter).) In determining what constitutes "sufficiently pervasive" harassment, courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial; rather, the plaintiff must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. (Fisher, supra, 214 Cal.App.3d at pp. 609-610; Aguilar v. Avis Rent a Car Sys. (1999) 21 Cal.4th 121, 131 (Aguilar).) Relevant factors include: (1) the frequency of the racial conduct; (2) the severity of the racial conduct; (3) whether the racial conduct was physically threatening or humiliating, or a mere offensive utterance; and (4) whether the racial conduct unreasonably interfered with the plaintiff's work performance. (Etter, supra, at p. 466.)