HIRAISHI v. DeLEON, Cal: Court of Appeal, 2nd Appellate Dist., 6th Div. 2022
The California Fair Employment and Housing Act (FEHA) prohibits a variety of conduct in the workplace, including gender discrimination and gender harassment. (See Gov. Code, § 12940, subds. (a) & (j)(1).) Discrimination focuses on “explicit changes in the `terms, conditions, or privileges of employment’ [citation]; that is, changes involving some official action taken by the employer.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706 (Roby), italics omitted.) Such actions may include “hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.” (Ibid.)
“By contrast, harassment often does not involve any official exercise of delegated power on behalf of the employer,” but instead “focuses on situations in which the social environment of the workplace becomes intolerable because the harassment . . . communicates an offensive message to the harassed employee.” (Roby, supra, 47 Cal.4th at p. 706, italics omitted.) It “`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.'” (Reno v. Baird (1998) 18 Cal.4th 640, 646 (Reno).)
As we stated in Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348 (Accardi), a hostile work environment can give rise to a gender harassment claim. Such a claim requires a plaintiff to show that they were forced to endure conduct that was unwelcome, based on their gender, and “`”sufficiently severe or pervasive to alter the conditions of . . . employment and create an abusive work environment.”‘” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279.)
Typically, official employment 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 and who will not attend meetings, deciding who will be laid off, and the like'" will not provide the evidentiary basis for a hostile work environment gender harassment claim. (Reno, supra, 18 Cal.4th at pp. 646-647.) Such actions "may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided . . . are those for discrimination, not harassment.'” (Id. at p. 647.) Sometimes, however, “the hostile message that constitutes . . . harassment [may be] conveyed through official employment actions.” (Roby, supra, 47 Cal.4th at p. 708.) When so conveyed, “evidence that would otherwise be associated with a discrimination claim [may] form the basis of a harassment claim.” (Ibid.)
For example, in Miller v. Department of Corrections (2005) 36 Cal.4th 446 (Miller), the Supreme Court considered “whether evidence of widespread sexual favoritism in the workplace could constitute sexual harassment against the nonfavored employees.” (Roby, supra, 47 Cal.4th at pp. 707-708.) “[T]he favoritism at issue . . . took the form of official employment actions, including promotions and favorable job assignments given to female employees involved in sexual relationships with a particular male supervisor.” (Id. at p. 708.) The court concluded that the plaintiffs “nevertheless stated a prima facie case of harassment” because the “widespread sexual favoritism [they alleged] could convey a `demeaning message . . . to female employees that they are viewed by management as “sexual playthings” or that the way required for women to get ahead in the workplace is to engage in sexual conduct with their supervisors or the management.’ [Citations.]” (Ibid.)Our
Supreme Court further explained how evidence traditionally associated with a discrimination claim can support a harassment claim in Roby, supra, 47 Cal.4th 686. In that case, the plaintiff’s harassment claim was based on “hostile social interactions in the workplace that affected the workplace environment because of the offensive message they conveyed.” (Id. at p. 708.) The majority of the acts supporting the claim—a supervisor’s “demeaning comments . . . about [the plaintiff’s] body odor and arm sores, [her] refusal to respond to [the plaintiff’s] greetings, [her] demeaning facial expressions and gestures toward [the plaintiff], and [her] disparate treatment of [the plaintiff] in handing out small gifts”—were “unrelated to [the supervisor’s] managerial role, engaged in for her own purposes.” (Id. at p. 709.) But other acts were “best characterized as official employment actions”: the supervisor’s “shunning of [the plaintiff] during staff meetings, [the] belittling of [the plaintiff’s] job, and [the] reprimand[ing] of [the plaintiff] in front of [her] coworkers.” (Ibid.) These official acts could “provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the [supervisor].” (Ibid.)
Miller, supra, 36 Cal.4th 446 and Roby, supra, 47 Cal.4th 686 thus make clear that a supervisor’s official employment actions can provide the evidentiary basis for a hostile work environment gender harassment claim under certain limited circumstances. The key is showing that the actions had the “secondary effect of communicating a hostile message.” (Roby, at p. 709.) “This occurs when the actions establish a widespread pattern of bias.” (Ibid.)