A spa employee managed to persuade a jury both that she was on the receiving end of sexual harassment while performing her job and that her employer failed to take the necessary steps required to prevent harassment or discrimination from occurring. However, in spite of all this, the employee ultimately recovered nothing. How could this happen? The jury decided that the harassment the employee suffered was not so pervasive or severe to amount to a violation of the Fair Employment and Housing Act, and the California Court of Appeal decided that employers have no obligation under the law to ensure that their workplaces are free from acts of harassment or discrimination that do not, in and of themselves, violate the statute.
The employee, Domaniqueca Dickson, worked as a massage therapist at a spa owned by Burke Williams, Inc. At some point during Dickson’s time at the spa, two different customers allegedly harassed the therapist. The employee later sued her employer for violating the FEHA. The employer, she argued, by allowing the harassment to occur, was guilty of sexual discrimination, sexual harassment, and failure to take reasonable steps necessary to prevent harassment and discrimination based on sex.
The jury ultimately sided with the employer on the harassment and discrimination claims. Although the jurors believed that Dickson suffered harassment and discrimination, they did not believe that the conduct was so pervasive or severe that it amounted to a violation of the FEHA. The jury did, however, conclude that the employer failed to prevent the sex discrimination or harassment that the employee did experience and awarded Dickson $285,000.
The employer appealed and was successful. The FEHA bars employers from discriminating based on sex and from engaging in sexual harassment. It also requires employers to take all reasonable steps needed to prevent discrimination and harassment from occurring. In order to put together a viable claim for failing to prevent discrimination or harassment, the employee must first show that harassment or discrimination took place.
The crux of the remaining dispute in Dickson’s case was whether an employer could be held liable, and an employee recover a judgment, based upon the employer’s failure to provide a workplace free from all discrimination and harassment, even though that harassment is itself too non-pervasive and non-severe to amount to a violation of the law. The appeals court decided that an employer could not be held liable in such circumstances. Allowing an employee to sue, and recover, for the employer’s failure to prevent not only actionable discrimination and harassment but all discrimination and harassment would open the door to allow employees to seek judgments based upon acts that were legally allowable: specifically, acts that were “nothing more than non-actionable teasing, an offhand comment, or an isolated incident.”
For answers to your questions about sexual harassment and discrimination in the workplace, talk to the Oakland employment attorneys at the Law Offices of Stephen M. Fuerch. Our employment attorneys have helped many other workers like you and are here to assist you with your case. Contact us through our website or call our office at (925) 463-2575 to schedule a confidential initial consultation today.
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