What Does the Law Say?

The Fair Employment and Housing Act (FEHA) makes it an unlawful employment practice… for an employer…or any other person, because of … physical disability … to harass an employee…” Cal. Gov’t Code § 12940(j)(1).

Evidence of a hostile work environment on the basis of disability is proof of FEHA disability harassment. Lawler v. Montblanc North America, LLC (9th Cir. 2013) 704 F3d 1235, 1244-1245; Caldera v. Department of Corrections & Rehabilitation (2018) 25 CA5th 31, 41-42; Cornell v. Berkeley Tennis Club, (2017) 18 Cal. App. 5th 908, 927 [a claim of disability harassment under the FEHA requires a showing that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their disability.]

Employees with disabilities who feel that their workplace is harassing and abusive because of, or based on disabilities, can pursue claims for hostile work environment harassment even when some of the conduct that forms their mental state is conduct directed at other employees. In other words, if an employee observes a supervisor treats all disabled employees with hostility, that evidence goes to show that the plaintiff workplace was hostile and abusive, even though some of what was done was done to other employees.

A Case Study

The opinion in the seminal case of Pantoja v. Anton, (2011) 198 Cal. App. 4th 87 is instructive:

“In this employment discrimination case, we are asked to decide whether the court erred in not allowing the jury to hear ‘me too’ evidence, that is evidence of the employer’s alleged gender bias in the form of harassing activity against women employees other than the plaintiff.

Here, the ‘me too’ evidence related to harassing activity that occurred outside the plaintiff’s presence and at times other than when the plaintiff was employed. … We conclude that the evidence should have been admitted and the failure to do so was prejudicial.” Pantoja at 92.

Pantoja explained that it is prejudicial reversible error for a trial court to exclude evidence of harassment of other employees, by the same harasser supervisor decisionmaker, unless said harassment occurred in the plaintiff’s presence. Pantoja at 109 [“Pantoja argues that the court erred when it ruled, both before and during the trial, that evidence of sexual harassment by Anton of other employees was admissible only if it took place in Pantoja’s presence or otherwise affected her working environment. We agree that it was an error for the court not to admit this evidence.”]

Several years following the Pantoja decision, the legislature enacted Cal. Gov’t Code § 12923 and thereby declared that “The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decision maker, may be relevant, circumstantial evidence of discrimination.” Cal. Gov’t Code § 12923(c).

Moreover, as now codified in said statute, “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive work environment.” Cal. Gov’t Code § 12923(b).

The conduct at issue without a doubt, in the totality of the circumstances,” goes to proving such an “intimidating, hostile, or offensive work environment.”

CACI Civil Jury Instruction 2521B unmistakably confirms that a FEHA plaintiff’s hostile work environment claim can be based on conduct directed at others. The directions for use state as follows: “This instruction is for use in a hostile work environment case if the plaintiff was not the target of the harassing conduct and the defendant is an employer or other entity covered by the FEHA.”

The second element of CACI 2521B states as follows: “That [name of plaintiff], although not personally subjected to harassing conduct, personally witnessed harassing conduct that took place in [his/her/nonbinary pronoun] immediate work environment.”

The instruction also confirms that it is not limited in application solely to cases involving sexual harassment, but that it applies to harassment based on any protected characteristic: “[Name of plaintiff] claims that coworkers at [name of defendant] were subjected to harassment based on [describe protected status, e.g., race, gender, or age] and that this harassment created a work environment for [name of plaintiff] that was hostile, intimidating, offensive, oppressive, or abusive.”

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