An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

not made directly in the context of an employment decision like termination or discipline, and even if uttered by a colleague who is not a decision-maker, may be relevant evidence of discrimination. 919 This means that while the “severe or pervasive” standard will still apply to complaints under federal Title VII, complaints raised under FEHA will have a lower threshold to reach the issue of whether there was a hostile environment. The new law also states the legal standard for sexual harassment should not vary by workplace, and therefore employers cannot use as a defense that their particular industry or work- environment is more tolerant of certain behaviors. An employee will not need to show his or her “tangible productivity” declined as a result of harassment in a workplace harassment suit, and may instead show a “reasonable person” subject to the alleged discriminatory conduct would find the harassment altered working conditions so as to make it more difficult to work. 920 Finally, this new law makes clear that dismissing harassment claims at the early stages of litigation will become more difficult for employers under these new standards, as motions to dismiss claims pre-trial are now disfavored under the revised law. 921 In California, an employee does not have to be a direct victim of the harassment, or even personally observe the alleged harassment, in order to bring a claim. Instead, the employee need only show that he or she learned about the harassment from a third party. 922 But if the alleged harassment is not directed at the employee and the employee has not demonstrated a loss of tangible job benefits, then the employee must show that the harassing conduct permeated his or her direct work environment. 923 A work environment can also be unlawfully hostile even if no sexual advances are made. 924 Work environments in which those who have sexual relationships with supervisors receive special job benefits can create a sexually hostile work environment for other employees who were not involved in the sexual relationships. 925 LCW Practice Advisor

The California Supreme Court has held that the same conduct can be both harassment and discrimination. Although discrimination and harassment are separate wrongs, some official employment actions taken in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message. 926

Miller v. Department of Corrections 927 Edna Miller worked at the California Department of Corrections. She learned that the Chief Deputy Warden was having sexual affairs with three different subordinates. Miller competed for promotion against one of the subordinates who was having an affair with Chief Deputy Warden. Miller did not get the promotion, and watched the subordinate who was having the affair with the boss make an unprecedented rise in the ranks. Miller and others witnessed the boss and the subordinates engage in sexual touching during Department social events. Miller complained, but did not use the term “sexual harassment” or “sexual discrimination.” The California Supreme Court determined that

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