Metropolitan News-Enterprise


Tuesday, October 29, 2002


Page 3


Employer Not Liable When Customer Harasses Worker, C.A. Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Fair Employment and Housing Act does not create a cause of action for a worker who claims her employer failed to protect her from sexual harassment from a patron, the Court of Appeal for this district ruled yesterday.

“Our analysis…leads to the conclusion that these statutes do not create employer liability when a non-employee client or customer sexually harasses an employee,” Justice Patti Kitching wrote for a divided panel in Div. Three. “…The Legislature, not this court, should draft and enact statutes that define the scope of employer liability.’

Justice Richard Aldrich concurred, but Presiding Justice Joan Dempsey Klein vigorously dissented.

The decision upholds Los Angeles Superior Court Judge Jean Matusinka’s ruling granting a nonsuit in favor of Diversified Paratransit, Inc. The company provides developmentally disabled adults and youth with transportation to day care centers and schools.

Raquel Salazar, a driver whose employment with Diversified in 1997 lasted less than an month, sued the company for violation of the FEHA. She claimed that the company failed to protect her from a developmentally disabled passenger who repeatedly touched her, looked at her in a way that made her uncomfortable, and exposed himself to her.

In the final incident before Salazar quit, she said, the man attacked her, touched her all over, and tried to put his hands under her shirts and shorts before he was pulled off by two male drivers after she summoned help over the radio.

Kitching agreed with the trial judge that the FEHA does not impose a duty on employers to protect their employees from sexual harassment by clients or customers over whom the employer has no direct control.

The decision turned largely on the interpretation of Government Code Sec. (j)(1).

The first sentence of that provision says it is generally unlawful “[f]or an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment,  or any other harass an employee” because of race, sex, or other prohibited characteristic.

The second sentence imposes liability for harassment “by an employee other than an agent or supervisor…if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” The law also requires the employer to “take all reasonable steps to prevent harassment from occurring.”

The “any other person” language in the first sentence, Kitching reasoned, means that an outsider who harasses an employee in the workplace is liable, not that an employer is liable for harassment by the outsider.

Under the statute, she elaborated, if the harasser is the employer, its agent, or a supervisor, the employer is liable. If the harasser is an employee other than an agent or supervisor, the employer is liable if the employer or an agent or supervisor had notice and failed to act, Kitching explained, but if the harasser is not an employee or agent, the employer is not liable.

“If the Legislature wished to create employer liability for harassment by clients and customers, it would have included clients and customers in the second  sentence,” the justice wrote. “It did not do so, and this court will not rewrite the statute to include what the Legislature omitted.”

The justice also cited the legislative history of the sexual harassment provisions, which date to 1984. She noted that broader liability was considered and rejected, and that then-Sen. (now Rep.) Diane Watson, chair of the committee considering the legislation,  informed the legal counsel for the California Manufacturers Association before the bill was passed that “employer’s responsibility for customer harassment” had “been amended out of the bill.”

Klein argued in dissent that Watson’s comment was being read out of context and given greater weight than it was entitled to. The Legislature’s intent, she said, was clearly expressed in the uncodified preamble to the bill, which declared that “worksites will be maintained free from prohibited harassment and discrimination by [employers’] agents, administrators, and supervisors as well as by their nonsupervisors and clientele.”

Kitching’s opinion, she wrote, “nullifies the statutory provision declaring the Legislature’s intent to protect employees from harassment by clientele and treats it as mere surplusage.” The accurate reading of Watson’s comment, Klein said, is that what was amended out of the bill was employer liability for harassment by customers away from the workplace.

Susan Graham Lovelace of Wiezorek, Rice & Dieffenbach represented Salazar on appeal, while Patrick L. Graves, Harvey W. Wimer III and Dennis J. Mahoney of Graves & King represented Diversified. Amicus briefs supporting the plaintiff were filed by Attorney General Bill Lockyer and the California Employment Lawyers Association, while the California Manufacturers and Technology Association backed the defendant.

The case is Salazar v. Diversified Paratransit, Inc., B142840.


Copyright 2002, Metropolitan News Company