SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHROP GRUMMAN CORPORATION, a Delaware Corporation; RAMY HERRERA, an Individual; DICK LANGE, an Individual; and DOES 1 through 50, Inclusive,
(Case Assigned to Hon. Ann Kough)
PLAINTIFF’S BRIEF REGARDING JURY INSTRUCTIONS
I. The Standard in Harassment Cases is Whether the Environment Would Have Been Perceived As Hostile By A Reasonable Person of the Same Race or National Origin as the Plaintiff.
BAJI 12.05 sets forth the elements of a claim of hostile environment harassment. Plaintiff and Defendant disagree on element number 6 of that instruction. Defendant argues that the proper inquiry is whether the environment would have been perceived as hostile by a reasonable person. That is an incorrect statement of the law. The true test is whether the environment would have been perceived as hostile by a reasonable person with the same defining traits as the Plaintiff - here, by a reasonable person of the same race or national origin as the Plaintiff.
In Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, the United States Court of Appeals for the Ninth Circuit adopted the reasonable woman standard, holding that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Id. at 879.
More recently, the United States Supreme Court agreed that the objective severity of harassment should be judged from the perspective of a reasonable person in the Plaintiff’s position, considering all the circumstances. Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 118 S. Ct. 998, 1003, 140 L. Ed. 2d 201, 208. See also Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1523, 1527 ("whether the workplace is objectively hostile must be determined from the perspective of a reasonable person with the same fundamental characteristics"); Beyda v. City of Los Angeles (1998) 65 Cal. App. 4th 511, 517-519, 76 Cal. Rptr. 2d 547, 550-551 ("the objective severity of harassment must be judged from the perspective of a reasonable person in Plaintiff’s position"); Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 609 n. 7, 262 Cal. Rptr. 842, 852 n.7 ("when evaluating a sexual harassment claim, a reasonable employee is one of the same sex as the complainant").
The objective standard which considers the standpoint of a reasonable person with the Plaintiff’s defining traits is not limited to sexual harassment cases. Rather, "other immutable traits possessed by the person bringing the charge, including but not limited to race, age, physical or mental disability, and sexual orientation, may in particular cases be relevant to the inquiry as well. Nichols v. Frank (9th Cir. 1994) 42 F.3d 503, 511-512. Here, the relevant traits are Plaintiff’s race and national origin. Thus, the proper inquiry is whether a reasonable person of the same race or national origin as the Plaintiff would have perceived his environment as hostile.
Accordingly, if the Court chooses to read BAJI 12.05, element number 6 should read as follows:
"6. The environment created by the conduct would have been perceived as intimidating, hostile, abusive, or offensive by a reasonable person of the same race or national origin as the Plaintiff."
II. Northrop Is Strictly Liable For Ramy Herrera’s Harassment of Mr. Awujo.
Defendant incredulously argues that BAJI 12.20 is wrong, and that Northrop is not liable for the harassing actions of its manager, Ramy Herrera. In making this argument, Defendant relies on Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal. App. 4th 833, 77 Cal. Rptr. 2d 12. Murillo does not support Defendant’s position. In fact, the case specifically provides that "an employer is strictly liable for damages an employee incurs as a result of a supervisor’s or agent’s sexual harassment." Id. at 842.
BAJI 12.20 is based on Government Code Section 12940(h)(1) which provides, in pertinent part, as follows:
"Harassment of an employee or applicant by an employee other than an agent or supervisor shall be unlawful 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."
BAJI 12.20 is also based on California Code of Regulations, Title 2 §§ 7286.6(b) and 7287.6(b)(2) and (3) which clarify that an employer is liable for the discriminatory actions of its supervisors, managers or agents committed within the scope of their employment or relationship with the employer. That this is the proper standard has been clarified by case after case in California. See e.g., Fiol v. Doellstedt (1996) 50 Cal. App. 4th 1318, 1328, 58 Cal. Rptr. 2d 308, 314 ("the FEHA provides that an employer is strictly liable for the harassment of an employee by an agent or supervisor"); Kelly-Zurian v. Wohl Shoe Co., Inc. (1994) 22 Cal. App. 4th 397, 415, 27 Cal. Rptr. 2d 457, 466 ("by providing harassment of an employee by an employee other than an agent or supervisor shall be unlawful only if the employer knows or should have known of the harassment and fails to intervene, § 12940 reflects that harassment by a supervisor is unlawful regardless of whether the employer knows or should have known and fails to intervene.") (emphasis in original); Fisher, supra, at 608, n.6, 262 Cal. Rptr. at 851, n.6 (an employer is strictly liable for the harassing conduct of its agents and supervisors).
The Murillo case relied upon by Defendant does make reference to a statement that sexual harassment is not within the scope of employment of a supervisor. In making that statement, the Murillo court relies on Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal. 4th 992, 1011-1015, 47 Cal. Rptr. 2d 478. The issue faced by the court in Farmers was not the same issue faced here. As explained by Justice Werdegar in her concurring opinion, the Farmers case dealt with the issue of:
"Whether a public entity employer, ... that is directly liable for its own negligence in connection with coemployee sexual harassment, and automatically liable for harassment by a supervisor (Gov. Code, §12940, subd.(h)) should, in addition, be required under principles of respondeat superior to indemnify the proven wrongdoer ... merely because his wrongful acts occurred at the worksite, during work hours."
Id. at 1023, 47 Cal. Rptr. 2d at 499-500 (concurring opinion) (emphasis in original).
The Farmers court itself confirmed that employers remain directly liable to harassed workers for violations of the FEHA. Farmers, supra, at 1014, 1020, 47 Cal. Rptr. 2d at 493, 497.
Murillo does not change the law regarding employer liability for the acts of its supervisors. Accordingly, BAJI 12.20 is a correct statement of the law and should be given in this case.
DATED: June 18, 1999 LAW OFFICES OF PAUL A. GREENBERG
Attorneys for Plaintiff SILAS AWUJO