Court of Appeal:
Salesman’s Racist Wisecracks Can Be Unruh Act Violation
Fact That Remarks Are Not Made on Premises of the Business Establishment Being Represented Is Not Determinative, Codrington Says, Declaring Demurrer Improperly Sustained
By a MetNews Staff Writer
An African American man who was singled out by a visiting speaker at his place of employment as having “banana hands” and otherwise derided has gained reinstatement by the Court of Appeal of his causes of action for intentional infliction of emotional distress and violation of the Unruh Act, with the court declaring that the act can be violated by off-premises remarks by a representative of a business establishment.
Justice Carol D. Codrington of the Fourth District’s Div. Two authored the opinion, filed Wednesday. While reversing San Bernardino Superior Court Judge John M. Tomberlin’s judgment of dismissal against the speaker and his company, the opinion expresses agreement with the sustaining of a demurrer without leave to amend to a cause of action under the Timberline’s Fair Employment and Housing Act (“FEHA”).
The plaintiff is Robert Smith. He was an employee of Jiffy Lube when Gustavo “Gus” Pumarol came to make a presentation about a new product put out by his employer, New Jersey-based BP Lubricants USA, Inc. (“BP”), which does business as Castrol.
When Smith asked a question, Pumarol said: “Huh. Speak up. I can’t hear you.”
Smith tried again to pose his question, and Pumarol wisecracked, “You sound like Barry White.”
White was an African American singer/songwriter. Smith took offense.
Later, Pumarol remarked:
“I don’t like taking my car to Jiffy Lube because I’ve had a bad experience with a mechanic putting his hands all over my car. How would you like Barry White over there with his big banana hands working on your car?”
Smith inferred from the word “banana” a reference to his race.
When Smith asked another question, Pumarol said: “What, I can’t see your eyes, what?”
Smith construed this to be an allusion to his dark skin.
He sued both Pumarol and BP under the Unruh Act and the FEHA, and sued Pumarol, alone, for intentional infliction of emotional distress.
Yesterday’s opinion permits Smith to proceed under the Unruh Act, which bars discrimination in providing access to business establishments. BP and Pumarol—who remains employed by BP—argued that the act does not apply because the sales presentation was not open to the public and racial harassment, not discrimination was alleged.
They cited the 1997 opinion from the Fourth District’s Div. One in Brown v. Smith which held that sexual harassment by a landlord was not covered by the Unruh Act.
“We do not find Brown persuasive or controlling here. Civil Code section 51.9, enacted decades after the Unruh Act, expressly provides a cause of action for a tenant whose landlord sexually harasses him or her. From this, we can presume that the Legislature did not intend for the Unruh Act to cover tenants who are victims of their landlords’ sexual harassment….But there is no specific statute enacted after the Unruh Act that covers Smith’s Unruh Act claim in the way Civil Code section 51.9 covered the Brown plaintiff’s Unruh Act claim.”
She took exception to the theory expressed in Brown that sexual harassment can never constitute a violation of the Unruh Act, asserting that the act “can be violated by verbal sexual harassment alone if it amounts to a business establishment treating its patrons unequally.”
The jurist continued:
“As a result, we reject BP and Pumarol’s argument that Smith cannot state a valid claim under the Unruh Act because it is based only on Pumarol’s alleged verbal harassment. We also disagree with BP and Pumarol that it is material whether Smith’s Unruh Act claim is labeled ‘racial harassment’ or ‘racial discrimination.’ Just as sexual harassment is a form of sex discrimination, racial harassment is a form of race discrimination.”
The racial harassment of Smith, Codrington reasoned, was discrimination by a business establishment. She explained:
“The parties agree that Castrol, Pumarol’s employer, is a business establishment. And because Pumarol was acting on Castrol’s behalf during his presentation, which was intended to educate Jiffy Lube’s employees about a Castrol product, he acted as a ‘business establishment’ while giving his presentation….
“That Pumarol’s presentation was not open to the public does not change our conclusion. Again, Castrol is ‘generally open to the public,’ and Pumarol was acting as its representative during his presentation about a Castrol product. BP and Pumarol do not cite, and we cannot locate, any authority that suggests the Unruh Act stops at the doors of a business establishment generally open to the public simply because its doors are closed to some, but not all of its “clients, patrons or customers,” when the alleged discrimination occurs. If that were the case, then business establishments could discriminate against their customers without offending the Unruh Act so long as the discrimination occurred at an event or location open to only a select group of its customers.”
Tomberlin erred in axing the cause of action for emotional distress, Codrington said, because a reasonable jury could find the conduct to meet the test of having been extreme and outrageous.
“Smith alleges that Pumarol made three offensive comments to him in front of about 50 of his colleagues, including three of his supervisors. According to Smith, after Pumarol made the first comment, everyone except for African American employees laughed, yet Pumarol made two more comments that Pumarol found offensive. Pumarol allegedly said that he would not want Smith’s ‘Banana Hands’ on his car and that he could not see Smith, which Smith construed as an unwelcome, racist comment about his dark complexion.
“On these facts, a reasonable jury could find that…Pumarol’s conduct was extreme and outrageous.”
Codrington agreed with the trial judge that a cause if action did not lie under the FEHA
The fact that BP was not Smith’s employer, she said, was not determinative because a non-employer that aids the employer’s discrimination can be found liable under the act. What mattered, she wrote, was that Smith did not plead that BP and Pumarol knew of, assisted or encouraged discriminatory acts toward Smith by Jiffy Lube.
The case is Smith v. BP Lubricants USA, 2021 S.O.S. 2024.
Los Angeles attorney Geoffrey C. Lyon represented Smith. Lois M. Kosch and Martina M. Nagle of the San Diego firm of Wilson Turner Kosmo acted for BP.
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