Decisions — continued from Previous Page
single most difficult aspect of proving hos- tile work- environment claims is establishing that the offensive conduct was “severe or pervasive.” California law has long recog- nized that “[t]here is neither a threshold ‘magic number’ of harassing incidents that gives rise ... to liability ... nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.” (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 36 [129 Cal.Rptr.2d 923], quoting from Rodgers v. Western-Southern Life Insurance Co. (7th Cir. 1993) 12 F.3d 668, 674.) However, it is equally well-settled that harassment is not actionable where the inci- dents of offensive conduct are “occasional, isolated, sporadic, or trivial.” (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th
264, 283 [42 Cal.Rptr.3d 2].) Thus, in seeking to avoid summary adjudication, employees whose claims rely on just a few overtly discriminatory remarks or actions, have argued for years that incidents of generalized harassment should be considered even when not overtly discriminatory. Employees have also argued that biased personnel decisions must be considered in determining severity or pervasiveness because they clearly contribute to the employee’s feeling of hostility in the work environment. Roby gave proponents of these types
of evidence a decisive victory, holding that, 1) overtly discriminatory comments or conduct may be used to prove that other generalized harassment was
motivated by discriminatory animus (Roby, supra, 47 Cal.4th at 709); and 2) personnel management decisions, such as performance evaluations, discipline and job assignments, must be considered in determining whether a hostile work environment was created. Roby broadly defines harassment as not just offensive verbal, visual or physical communications, but any conduct which sends “abusive messages that create a hostile working environment.” (Id. at 707.) Roby also provided clear direction to
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trial courts, holding that “in analyzing the sufficiency of the evidence in support of a harassment claim, there is no basis for excluding evidence of biased person- nel management actions so long as that evidence is relevant to prove the communica- tion of a hostile message.” (Id. at 708, italics added.) Equally important, the Supreme Court explained that, while the FEHA treats discrimination and harassment as separate claims, there is no reason to seg- regate evidence relevant to both claims: “in some cases the hostile message that constitutes the harassment is conveyed through official employment actions, and therefore evidence that would otherwise be associated with a discrimination claim can form the basis of a harassment claim.”(Ibid.) After Roby, employees whose claims
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involve just a few overtly discriminatory remarks should find it much easier to sur- vive summary judgment on hostile work environment claims and preserve verdicts on appeal. Now, any analysis of the severi- ty or pervasiveness of a harassment claim must also include biased personnel deci- sions and generalized harassment, such as speaking to the employee in an abusive, demeaning or belittling tone. As long as evidence exists from which a jury can infer the discriminatory animus of a par- ticular supervisor, all of that supervisor’s daily negative interactions with the employee must be considered. Because biased supervisors frequently communi- cate hostility in the tone and content of their daily interactions with the complain- ing employee, it will rarely be appropriate after Roby to grant summary judgment on a hostile work environment claim.
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