Metropolitan News-Enterprise


Thursday, January 23, 2003


Page 1


S.C. to Decide if Employer Liable When Customer Harasses Worker


By KENNETH OFGANG, Staff Writer/Appellate Courts


The state Supreme Court agreed yesterday to decide whether the Fair Employment and Housing Act creates a cause of action for a worker who claims her employer failed to protect her from sexual harassment by a patron.

The justices voted unanimously at yesterday’s conference to review the Oct. 28 ruling of this district’s Div. Three in Salazar v. Diversified Paratransit, Inc., 103 Cal.App.4th 131. That panel held, over a vigorous dissent by Presiding Justice Joan Dempsey Klein, that the statute reflects no intent to hold employer’s liable “when a non-employee client or customer sexually harasses an employee.”

Attorney General Bill Lockyer and the California Employment Lawyers Association were among those urging the high court to take the case.

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

Assault by Passenger

Raquel Salazar, a driver whose employment with Diversified in 1997 lasted less than an month, sued the company, claiming it 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.

Div. Three Justice Patti Kitching, joined by Justice Richard Aldrich, 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 court held that a FEHA provision generally making it unlawful for an employer “or any other harass an employee” because of race, sex, or other prohibited characteristic imposes liability on such “other person,” not on the employer, for the third person’s actions.

An employer is liable, Kitching explained, only if the employer is the harasser, or, under another FEHA provision, if the employer “or its agents or supervisors—knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”

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’s Dissent

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.

In other action at the conference, the justices unanimously agreed to decide whether the felony-murder rule applies where an accomplice accidentally kills himself while jointly engaged with the defendant in the perpetration of the underlying felony. The Third District Court of Appeal held in People v. Billa, 102 Cal.App.4th 822, that it did, affirming the conviction of an arsonist whose accomplice died of injuries sustained while setting fire to the defendant’s truck as part of an arson-for-profit scheme.


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