Mission Viejo Employment Attorneys

A former prison employee sued his employer, alleging discrimination, failure to engage in interactive process, retaliation, harassment based on disability, and failure to accommodate disabilities under Fair Employment and Housing Act (FEHA). The Superior Court granted summary judgment in favor of the employer.  The former prison employee appealed. The Court of Appeal decided, among other things, that the the employee failed to demonstrate that employer subjected him to adverse employment action, as necessary to establish discrimination and retaliation claims under FEHA, failed to establish that his supervisor’s conduct constituted harassment under FEHA, and that the employer’s denial of employee’s requests for accommodation did not constitute harassment under FEHA.  The Court’s opinion states in part as follows; An “adverse employment action” is one that “materially affects the terms, conditions, or privileges of employment.” (Yanowitz, supra, 36 Cal.4th at pp. 1036, 1051, 32 Cal.Rptr.3d 436, 116 P.3d 1123.) “In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706, 708, 101 Cal.Rptr.3d 773, 219 P.3d 749 (Roby) [demoting employee to answering the office telephones during office parties and firing employee constituted adverse employment actions].) An adverse employment action refers not only to “ultimate employment actions such as termination or demotion, but also … actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement.” (Yanowitz, at p. 1054, 32 Cal.Rptr.3d 436, 116 P.3d 1123.) That said, “[m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable.” (Ibid.).

The opinion also provides as follows: To prevail on a harassment claim under FEHA, a plaintiff must produce evidence they were subjected to “offensive comments or other abusive conduct” that is (1) based on a “protected characteristic” (here, a claimed disability) and (2) “sufficiently severe or pervasive as to alter the conditions of [his] employment.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 871, 172 Cal.Rptr.3d 732 (Serri).) To constitute harassment, the conduct must be so objectively severe or pervasive as “ ‘to create a hostile or abusive working environment.’ ” (Id. at p. 870, 172 Cal.Rptr.3d 732.) Factors to consider in this context include the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s work performance. (Ibid.)  In addition, disability harassment is distinguishable from discrimination. (Serri, supra, 226 Cal.App.4th at p. 869, 172 Cal.Rptr.3d 732.) “[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.” (Ibid., italics added.) “[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” (Roby, supra, 47 Cal.4th at p. 706, 101 Cal.Rptr.3d 773, 219 P.3d 749.) Put differently, “[h]arassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct. An individual supervisory employee cannot, however, refrain from engaging in the type of conduct which could later give rise to a discrimination claim. Making personnel decisions is an inherent and unavoidable part of the supervisory function.” (Reno v. Baird (1998) 18 Cal.4th 640, 646 [76 Cal.Rptr.2d 499, 957 P.2d 1333], italics added.) “When the harasser is a supervisor, the employer is strictly liable for the supervisor’s actions. (Roby, at p. 707, 101 Cal.Rptr.3d 773, 219 P.3d 749.)