Metropolitan News-Enterprise


Friday, November 5, 2004


Page 1


Law on Liability for Harassment of Coworkers Held Not Retroactive


By KENNETH OFGANG, Staff Writer/Appellate Courts


Legislation imposing liability on employees who harass their fellow employees on the basis of the victim’s race or gender changed the law and cannot be applied to conduct occurring before the new law took effect, the California Supreme Court ruled yesterday.

In a 6-1 decision, the justices reversed a decision of the First District Court of Appeal allowing Lesli Ann McClung to sue Manuel Lopez, with whom she had worked at the state Employment Development Department, for creating a hostile work environment.

McClung alleged that Lopez made sexually explicit remarks and touched her inappropriately on four occasions while they were working together on a project away from the capital.

Employer, Coworker Sued

McClung sued the EDD and Lopez in Sacramento Superior Court. The state argued that it had no liability under the facts, while Lopez contended that he could not be held liable in any event because he was not McClung’s employer or supervisor.

Judge Joe S. Gray granted summary judgment in favor of both defendants, but the First District Court of Appeal reversed as to Lopez. The court cited an amendment to the Fair Employment and Housing Act, effective Jan. 1, 2001, imposing personal liability for harassment on nonsupervisory coworkers, contrary to the ruling in Carrisales v. Department of Corrections(1999) 21 Cal.4th 1132 .

In applying that amendment, the Court of Appeal noted that the amendatory language appears in a subdivision of FEHA saying that its provisions are “declaratory of existing law.”

But that reasoning failed to sway the high court.

“Under fundamental principles of separation of powers, the legislative branch of government enacts laws,” Justice Ming Chin wrote. “Subject to constitutional constraints, it may change the law.  But interpreting the law is a judicial function.  After the judiciary definitively and finally interprets a statute, as we did in Carrisales— the Legislature may amend the statute to say something different.  But if it does so, it changes the law; it does not merely state what the law always was.  Any statement to the contrary is beyond the Legislature’s power.”

An amendment to the law may, in some instances, be applied retroactively, Chin acknowledged. But there is a strong presumption against retroactivity, he said, and there is “nothing here to overcome” that presumption.

Chin rejected the argument that by amending a section declaring its provisions declarative of existing law, and not deleting that language, the Legislature was expressing its intent to apply the amendment retroactively.

The justice noted that the “declaratory of existing law” language was inserted by a 1987 amendment. “Any inference the Legislature intended the 2000 amendment to apply retroactively is thus far weaker than if the Legislature had asserted, in the 2000 amending act itself, that the amendment’s provisions declared existing law.”

Retroactive application might, in this instance, also be unconstitutional, Chin said, since it would create liability for past conduct.

Moreno Dissent

Justice Carlos Moreno, dissenting, agreed that the Legislature could not make a change “declaratory of existing law” merely by saying so. But he agreed with the plaintiff that the Legislature intended to amend the law retroactively and said there was no constitutional bar to its doing so.

He noted that the rule against retroactive imposition of liability for damages is not universally applied, and said nonsupervisory coworkers could, at the time of the harassment alleged by McClung, be held liable under common law for the type of misconduct alleged, even if not under FEHA.

“Given the ‘modest’ constitutional impediments to retroactive civil legislation— and the circumstance that harassment by nonsupervisory coworkers was tortious prior to the statutory amendment imposing liability for such conduct under the FEHA, I conclude that there is no constitutional obstacle to the retroactive imposition of personal liability for harassment on nonsupervisory coworkers, as the Legislature intended,” Moreno wrote.

The case is McClung v. Employment Development Department, 04 S.O.S. 5921.


Copyright 2004, Metropolitan News Company