Three recent appellate court opinions on retaliation and harassment claims emphasize the broad, but not limitless, scope of protected activity under the Fair Employment and Housing Act (“FEHA”) as well as an employer’s duties to implement measures to prevent harassment and retaliation immediately upon learning of a potential incident of harassment.
The Court of Appeal held that the Fair Employment and Housing Act (“FEHA”) prohibits retaliation against employees who are believed to be potential witnesses to another FEHA claim. 162 Cal.App.4th 1241 (2008).
Lisa Steele worked as an office assistant at the Youthful Offender Parole Board (“YOPB”). Raul Galindo, chairman of the YOPB board, approached Steele at work and asked Steele about her participation in bikini contests. After asking for directions to the next contest, Galindo went to the contest and tried to kiss Steele on the lips at the end of the contest, but Steele turned her head so that she received the kiss on her cheek. Steele told her co-workers, including Kym Kaslar, about the incident at the bikini contest.
A managing supervisor, Anthony Peacock, heard about the incident and interviewed Kaslar concerning her knowledge of the events. He informed Kaslar not to speak further of the incident and that what she knew could get her into trouble and cause her to lose her job. He later met with Kaslar again and instructed her not to have any contact with any of the board members and threatened her with adverse action if she said anything regarding the incident. Kaslar subsequently filed complaints with the State Personnel Department and the Department of Fair Employment and Housing (“DFEH”) claiming retaliation based on her report of the kissing incident.
Prior to the filing of Kaslar’s complaints, Steele had received positive job performance evaluations. After the filing of the complaint, she received negative performance evaluations, which she believed contained false accusations and brought these issues to Peacock’s attention. Peacock later informed Steele and Kaslar that there might be budget cuts in the future and that they should look for other jobs.
Three days after the YOPB received service of Kaslar’s DFEH complaint, Peacock informed Steele that he would be suspending her in 30 days based on her trashing of YOPB mail even though he had previously admitted that the allegations about Steele’s trashing of mail did not appear valid and even though the disciplinary steps preceding a suspension (a letter of instruction followed by a letter of reprimand) had not been taken. Peacock again encouraged Steele to seek employment elsewhere because she would make the office look bad if investigators came and she was still at the office. He warned Steele that a suspension would be a huge black mark on her state employment records which would make it difficult for her to transfer to another state job. Steele later resigned.
The Court of Appeal found that Steele was a potential witness in the DFEH investigation and therefore, engaged in a protected activity under FEHA. YOPB argued that Steele was not engaged in protected activity until she was actually listed as a potential witness in Kaslar’s complaints. The Court disagreed and found that FEHA prohibits retaliation against employees who are believed to be prospective witnesses, even before the filing of a complaint. In particular, the Court noted that managing supervisors at YOPB immediately understood that Galindo’s conduct was improper and took prompt action to prevent his repetition of such conduct.
The Court also found that they understood that Steele was a percipient witness to Galindo’s conduct and a potential witness in the event any sexual harassment claims were made. In finding that YOPB retaliated against Steele based on her potential participation as a witness, the Court considered YOPB’s actions after management learned of the incident and prior to the filing of Kaslar’s complaints.
The Court of Appeal found that an employee failed to show that he engaged in protected activity by lodging general grievances to his employer concerning his working conditions that did not implicate racial discrimination or harassment. 160 Cal.App.4th 1188 (2008).
Daniel Villanueva was employed by the City of Colton as a lead operator in its wastewater division. He filed a complaint against the city alleging that the City had retaliated against him by demoting, suspending and reprimanding him as a result of his complaints to managers that he believed he was the victim of racial discrimination. Villanueva had lodged two formal complaints through his association representative concerning the allocation of overtime and the City’s failure to follow an alleged oral agreement he had with a prior human resources representative concerning his seniority. Neither of these complaints alleged racial discrimination or harassment based on race.
Villanueva argued that his failure to mention the term “race discrimination” should not be controlling and relied on a Ninth Circuit decision, Gifford v. Atchison, Topeka and Santa Fe Ry. Co., 682 F.2d 1149 (9th Cir. 1982), finding that a plaintiff’s failure to use the term “sex discrimination” was not controlling. However, the Court noted that the plaintiff had complained that the bargaining agreement had a harsher impact on women that it had on men.
The plaintiff’s complaint that a certain practice had a disparate impact on a protected group invoked unlawful discrimination, whereas Villanueva’s general complaints about his working conditions did not concern or involve racial discrimination or harassment. Thus, the Court found that Villanueva failed to show that he had engaged in protected activity, which is necessary to form a basis for his retaliation claim under FEHA.
The Court of Appeal found that an investigation in and of itself is not sufficient to meet an employer’s duty to take prompt corrective action under FEHA—rather the employer must take steps to prevent the alleged harassment, even if the employee’s allegations are disputed or appear unfounded. 158 Cal.App.4th 1612 (2008).
Sallie May Bradley was a special employee working at California Department of Corrections and Rehabilitation (“CDC”) as a licensed social worker. She brought a complaint against CDC alleging sexual harassment and retaliation arising from the intimidating and harassing behavior of the prison’s Muslim chaplain, Omar Shakir, towards her and her subsequent discharge in retaliation for her complaints about his behavior. Shakir engaged in stalking behavior towards Bradley both on and off work premises and threatened to rape her.
Bradley reported this behavior to her immediate supervisor and was referred to the warden’s office. She was interviewed by the warden and various other prison officials about Shakir’s behavior as well as an EEOC counselor. Bradley expressed a concern for her safety and complained of harassment on and off prison grounds to these individuals. Shakir was not interviewed although an official sent a letter to his supervisor that there was a complaint against him, but did not indicate that it was a sexual harassment complaint. The official also spoke with Shakir for seven to 10 minutes and handed him a letter informing him that a complaint had been made and asked Shakir to refrain from contacting Bradley. No efforts were made to ensure that Shakir abided by this no-contact directive even though he had a known history for breaking rules and ignoring supervisors’ direction.
On appeal, CDC claimed that it had launched a prompt investigation of the sexual harassment complaint and therefore fulfilled its duties under FEHA. CDC also argued that it could only be liable for Shakir’s actions occurring after the date of Bradley’s initial complaint to management since Shakir was not a management employee. The Court noted, however, that Shakir’s behavior prior to this date was still relevant in evaluating CDC’s response to Bradley’s complaint. Although the Court agreed that initiating an immediate investigation is an important measure an employer should take in response to a sexual harassment complaint, it stated that an investigation without any remedial action is not sufficient. Rather, the employer must take immediate steps to end the harassment and prevent future harassment, even where a complaint is unsupported or where the co-worker denies the allegations.
The CDC conducted a factual investigation, but did not take any steps to try to curb the harassment or protect Bradley. The CDC’s investigation lasted over a month and was referred to various departments for further determinations. During this time, Shakir was not interviewed and no remedial steps were taken. The Court found that “CDC may not wait to act until it decides whether the complaint is valid.” Therefore, the Court affirmed the jury’s finding that CDC failed to take immediate and appropriate action as required by FEHA.
Both Steele and Bradley caution employers to take immediate investigative and corrective action as soon as they learn of a potential incident of harassment, even if no formal complaints have been filed or the incident does not appear to amount to harassment. Although conducting an investigation is an important first step, the investigation must be immediate, thorough and objective.
In Bradley, the employer’s investigation did not appear neutral because it was performed at the direction of other board members and the chairman of the board was the alleged harasser. In this situation, the employer should appoint a qualified, neutral third party to investigate an employee’s allegations. In addition, the employer should treat all claims as valid unless and until established otherwise. Temporary steps should be taken while the investigation is pending. Although the employer should usually wait until the investigation is complete before imposing disciplinary measures, some immediate protective measures may include the following: (1) a transfer or reassignment of the accused employee under the same terms and conditions to separate him or her from the complainant; (2) mandatory sexual harassment training for all employees; and/or (3) monitoring the treatment of the complainant to ensure that he or she is not subject to harassment or retaliation.