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Reconciling Civil Rights, Freedom of Speech, and “Stray Remarks”
Department of Fair Employment and Housing
Nelson Chan, Associate Chief Counsel
July 20, 2011
5 Focused Educational Goals
1. Understanding the public policy and workplace
imperatives for eliminating harassment.
2. Learning to distinguish between unlawful harassment,
and comments and behaviors that may be offensive but
not actionable.
3. Examining the status of the “stray remarks” defense in
4. Exploring the balance between harassment and free
speech rights.
5. Taking steps to prevent harassment and how to handle
the situations that do arise.
Public Policy: Workplace Harassment
is Unlawful and Unproductive
To promote advancement and productivity for the benefit of
society it is unlawful for an employer or individual to harass
another employee, applicant or contractor on the basis of race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital status,
sex, age, or sexual orientation. (Gov. Code, §§12920, 12940,
subd. (j).)
Harassment leads to:
Poor Morale
Loss of Focus on Core Mission
Legal Consequences
ANYONE Can be a Harasser
пЃЇ Harassment does not require the exercise of official
power. Anyone from an entry level clerk to the CEO can
be a harasser.
пЃЇ Loss of tangible job benefits is NOT required.
пЃЇ Plaintiff must prove that there was a hostile work
environment, i.e., that the conduct involved interfered
with a reasonable person’s ability to perform his or her
job and that the plaintiff was actually affected.
Government Code section 12940, subdivision (j).
Roby v. McKesson (2010) 47 Cal.4th 686, 706.
State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th, 1026,
DFEH v. Lydaan Law Group (Cal. F.E.H.C. 2010) WL 4901731, p. 8.
Harassment is Personal
“’[H]arassment consists of conduct outside the
scope of necessary job performance, conduct
presumably engaged in for personal
gratification, because of meanness or bigotry,
or for other personal motives.’”
Roby v. McKesson (2010) 47 Cal.4th 686, 707, citing Reno v. Baird (1998)
18 Cal.4th 640, 645-647.
Examples of Harassing Behavior
Unlawful harassment can include, but is not limited to:
пЃЇ Verbal harassment, e.g., epithets, derogatory comments
or slurs.
пЃЇ Physical harassment, e.g., assault, impeding or blocking
movement, or any physical interference with normal
work or movement.
пЃЇ Visual harassment, e.g., derogatory posters, cartoons, or
пЃЇ Sexual harassment, e.g., unwanted sexual advances
which condition an employment benefit upon an
exchange of sexual favors.
California Code of Regulations, section 7287.6, subdivision (b).
FEHA is not a Civility Code
“[T]he FEHA is not a �civility code’ and is
not designed to rid the workplace of
vulgarity. [Citations omitted.].”
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th
264, 295.
Personal Strict and Vicarious Liability
пЃЇ Anyone found to have unlawfully harassed a co-worker,
applicant or contractor is personally liable for the
damages caused by the harassment.
пЃЇ If the harasser was a supervisor, the employer is
strictly liable for those acts; the employer is
vicariously liable for harassment by employees that
the employer knew or should have known about.
пЃЇ In the case of sexual harassment, if the harasser is a
third party, but the employer, its agents or supervisors
knows of the conduct and fails to take immediate and
appropriate action, the employer may be vicariously
liable for those acts.
Government Code section 12940, subdivision (j).
You be the Judge: Hypothetical 1
Does the environment matter?
пЃЇ Pat works as a production assistant for a popular TV
show about a sex therapist from Canada.
пЃЇ Pat is from Winnipeg.
пЃЇ While working, Pat is exposed to bawdy, sexually
explicit banter between the writers who also suggest
dialogue ending in catch phrase, “that’s that, eh?”
The comments are not directed at Pat but hearing
them is unavoidable.
пЃЇ Pat is terminated for poor attendance.
пЃЇ Pat sues the employer and the writers claiming to
have missed work because to avoid harassment based
on sex and national origin.
пЃЇ Will Pat be successful?
Answer to Hypothetical 1: No.
Pat was not the target of inappropriate language and the
nature of her work necessarily exposed her to vulgar
language necessary for the creative process of the show.
Looking at the totality of the circumstances were there acts or
omissions that were severe enough or sufficiently pervasive to
create a work environment that was hostile or abusive.
пЃЇ Frequency
пЃЇ Severity
пЃЇ Physically threatening or humiliating
пЃЇ Mere offensive uttering
 Whether it unreasonably interferes with an employee’s work
Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th
264, 283.
You be the Judge: Hypothetical 2
Can the remarks of non-supervisors be used as
evidence to prove the company harassed Jane?
Jane, 53,is hired as CFO for Cutting Edge Skateboards.
The Cutting Edge campus has a skateboard park and is very
casual and physically active. Jane wears a business suit and
prefers to walk.
Jane becomes aware her younger colleagues call her “the
Biped,” and “Mrs. Yoda,” “8 track” and other uncharitable
Jane’s boss praises her expertise in finance but notes in her
performance review that she needs to “embrace our culture.”
Jane is demoted and transferred to a manufacturing facility.
Jane quits and sues, including claims for harassment based on
age and sex.
Cutting Edge asserts that Jane should lose because the teasing
remarks were uttered by subordinates who had nothing to do
with her assignments and were only sporadic, “stray remarks.”
Should Cutting Edge prevail?
Answer to Hypothetical 2: No.
 The so-called “stray remarks” doctrine has
been rejected in California.
пЃЇ The teasing remarks, even if spoken only by
non-managerial personnel are indirect evidence
of discrimination and harassment by
management (as well as direct evidence of
harassment by the individuals).
пЃЇ The totality of the circumstances must be
Reid v. Google (2010) 50 Cal.4th 512, 536-546.
You be the Judge: Hypothetical 3
What about Freedom of Speech?
Plaintiffs, Latinos employed as “drivers” for We Try Harder Rental
Car Company sue for harassment, alleging that their
 Routinely called only the Latino drivers “motherf***ers,” racial
epithets, and other derogatory names.
пЃЇ Demeaned them on the basis of national origin, race and lack
of English skills.
пЃЇ Conducted an investigation regarding a stolen stapler in which
he identified only the Latino workers as suspects.
пЃЇ The jury found that the supervisor had committed all the
alleged acts.
Is the supervisor liable for harassment?
Is We Try Harder liable for harassment?
Can the Court order the employer to ensure that such
racial epithets are not used in the future?
Answers to Hypothetical 3:
1. Yes. Government Code section 12940, subdivision (j).
2. Yes. Government Code section 12940, subdivision (j).
3. Yes. The First Amendment permits imposition of civil
liability under the FEHA for past instances of pure speech
that create a hostile work environment. (Aguilar v. Avis
Rent A Car System, Inc. (1999) 21 Cal.4th 121, 140-142.)
While a single use of a racial epithet, alone, does not create
a hostile work environment, if a pattern of such use is
established by the evidence, the trial court can enjoin
such speech. (Id. at p. 147.)
You be the Judge: Hypothetical 4
Do I have to put up with to this?!?
Al is chair of the math department at Valley Community College.
Al frequently sends e-mail to other faculty and administrators
using the community board to post his anti-immigrant and antiMuslim remarks making insulting comments about “backward
cultures,” “inscrutable designs on our way of life,” “every Muslim
secretly wants to impose their religion on us,” or quoting radio and
television personalities who share his views.
Faculty members, of diverse backgrounds including Asians and
Muslims complain and ask the trustees to close the community
board and reprimand Al.
The trustees decline to do so.
The offended employees sue seeking a court order compelling the
trustees to act.
Answer to Hypothetical 4: No.
 Al’s comments, while hurtful and
offensive, are not directed at specific
 The trustees must respect Al’s First
Amendment right to free speech and
cannot use governmental authority to
squelch it.
Rodriguez v. Maricopa Community College Board (9th Cir.
2010) 605 F3d. 703, 711.
Distinguishing Aguilar from
пЃЇ In Aguilar there was a jury verdict
finding that specific epithets were
directed at the Latino workers.
пЃЇ In Rodriguez, the comments were not
directed at specific individuals but,
instead, expressed general political
Dealing with Harassment
пЃЇ A manager or supervisor observes or receives
complaints of unlawful harassment he or she
must take immediate, appropriate action.
пЃЇ Follow internal protocols.
пЃЇ Separate. Diffuse the tension.
пЃЇ Investigate. Conduct a thorough, unbiased
пЃЇ Respond. Let people know what is going on.
Prevention: It’s the Law
An employer must take reasonable
steps to prevent discrimination from
Government Code section 12940, subdivision (k).
пЃЇ Develop Written Policies and
пЃЇ Train both supervisors and line
employees regarding each person’s
rights and responsibilities.
 Don’t just go through the motions.
DFEH v. Lydaan Law Group (2010) FEHC Dec. No. 10-04-P,
2010 WL 4901732 (Cal.F.E.H.C.)
Use the Right Tools
пЃЇ If the comments are annoying, maladroit,
vulgar or offensive, but don’t rise to the level
where a reasonable person would find his or
her work environment affected, DON’T accuse
or treat the offense as harassment.
пЃЇ Look to the employee handbook or similar
document for rules requiring civil behavior.
пЃЇ For state workers and managers, look also to
Government Code section 17952, subdivision
(m), which prohibits discourteous conduct.
A discrimination free workplace includes a harassment free
Harassment is verbal, visual or physical behavior that is so severe
or pervasive that it creates a hostile work environment from the
point of view of a reasonable person and the plaintiff. No specific
adverse employment action is necessary to show harassment.
The individual harasser is PERSONALLY liable for the damages
The employer is liable for the harassment of non-supervisors only
if it fails to take immediate, effective action upon learning of the
The employer is STRICTLY LIABLE for harassment of a supervisor.
California has rejected the “stray remarks” defense.
Absent a finding of unlawful harassment, the First Amendment
protects against restraints under the FEHA. Workplace behavior
policies may be a more effective approach.
Reasonable steps to PREVENT unlawful discrimination/harassment
is mandatory.
For Information on upcoming training
and other events:
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