Navigating — continued from Page 56
show a concerted pattern of harassment of a repeated, routine or a generalized nature. [Citation].” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 611 [262 Cal.Rptr. 842], emphasis added.) Defendants then attempt to parse the evidence of harassment by saying this one is “isolated” so ignore it, this one is “trivial” so ignore it, this is a “stray remark” so ignore it, etc. This divide and conquer approach
violates the first rule of FEHA law – alleged violations must be evaluated by considering the “totality” of the evidence, not by any piecemeal approach. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 [30 Cal.Rptr.3d 797] [“all the cir- cumstances.”]) Moreover, it is important to recog-
nize a related ploy by defendants. They will often put evidence into separate cate- gories (e.g., “discrimination” versus “harassment” or “retaliation”) and then pretend that the same evidence cannot support liability under more than one legal theory. In this way, if, for example, the jury found harassment (but not dis- crimination), the defendant (in either the JNOV. setting or on appeal) would focus solely on the evidence it contends sup- ported “harassment” and then pretend
the related evidence which it labeled as “discrimination evidence” did not exist. The California Supreme Court expressly rejected this type of slicing-and dicing of plaintiff’s evidence in its recent decision Roby v. McKesson Corp. (2010) 47 Cal.4th 686 [101Cal.Rptr.3d 773]: In allocating the evidence between
Roby’s discrimination and harassment claims and then ignoring the discrimi- nation evidence when analyzing the harassment verdict, the Court of Appeal erred. As discussed above, the FEHA treats discrimination and harassment as distinct categories, but nothing in the FEHA requires that the evidence in a case be dedicated to one or the other claim but never to both. Here, the evi- dence is ample to support the jury’s harassment verdict. . . . This evidence was sufficient to allow the jury to con- clude that the hostility was pervasive and effectively changed the conditions of Roby’s employment.
(Id. at 710.) In Roby, the California Supreme
Court underscored that harassment claims look at the “social environment” of the workplace and seek to determine whether the workplace has become intolerable because the harassment
“communicates an offensive message to the harassed employee.” (47 Cal.4th at 706, emphasis added.) This statement is consis- tent with the Court’s previous adoption of the definition set forth by the U. S. Supreme Court that liability may arise when a workplace is “permeated with ‘dis- criminatory [sex-based] intimidation, ridicule, and insult.’ [citation] that is ‘suf- ficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environ- ment[.]” (Lyle, supra, 38 Cal.4th at 279, citing Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 [114 S.Ct. 367].)
Plaintiff could not have been harmed by the complained-of conduct Roby illustrates how to diffuse another
defense argument – that in a sexual harassment case, the harassing conduct must be directed at the plaintiff. It point- ed out that even if the plaintiff, herself, was not subject to sexual demands in the workplace, she could recover if she was nonetheless subjected to an abusive work- ing environment. To illustrate, Roby cited its earlier decision in Miller, supra, 36 Cal.4th 440. There, the defense argued that no hostile work environment claim
See Navigating, Page 60
58— The Advocate Magazine APRIL 2011
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112