Recent Employment Law Decisions

Ninth Circuit

Employers can be liable for sexual harassment by third parties if they ratify it, or if they know about it and fail to take immediate and appropriate corrective action

CHRISTIAN v. UMPQUA BANK

PLAINTIFF CHRISTIAN ALLEGED THAT SHE WAS STALKED

The facts of the case were largely undisputed. A bank customer allegedly stalked Plaintiff Jennifer Christian, leaving her unwanted notes, entering the bank without a business purpose and staying to stare at her, making unwanted inquiries of her co-workers about her, and appearing at a charity event where Christian volunteered.

Plaintiff Christian brought the matter to her supervisors, asking them to close the customer’s account and prohibit him from entering the premises. Although it closed (and subsequently re-opened) the customer’s account, and finally barred him from the bank, its actions prior to that were arguably suspect. For example, according to the complaint, at least two supervisors told Christian that she should “hide in the break room” when the customer entered.

PLAINTIFF CHRISTIAN REQUESTED A TRANSFER AND ULTIMATELY QUIT

Believing that Defendant Umpqua Bank was not doing enough to protect her safety, Plaintiff Christian requested a transfer to another branch. She accepted shorter hours, despite the financial hardship that this imposed. She ultimately quit because her doctor advised her to.

THE CONTINUING ALLEGED HARASSMENT VIOLATED TITLE VII

The Ninth Circuit reversed the summary judgment granted by the district court. It found that the trial judge erred by disregarding those incidents which Plaintiff Christian did not herself witness, but about which she was nonetheless informed. For example, the customer left notes for Plaintiff Christian which were ultimately given to her, and her co-workers told her when the customer asked about her.

The district court erred further by disregarding the incidents between the first and last acts of harassment because they were

seven months apart. The appellate court instructed that the continuing pattern of harassment was not to be disregarded just because it happened over a long period of time.

THE ALLEGATIONS WERE SUFFICIENT TO HOLD DEFENDANT UMPQUA BANK LIABLE

Moreover, the allegations of Defendant Umpqua Bank’s actions – and frequent inactions – were sufficient that a reasonable jury could find that it either ratified the conduct, failed to take reasonable steps to stop it, or both.

CONCLUSION

Title VII allows for an employer’s liability for the actions of third parties if the employer either ratifies the actions, or fails to take immediate and appropriate corrective action.

Ninth Circuit, Filed 12/31/20. Opinion by Justice Paez.

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Practice Guide
By Hon. Michael D. Marcus (Ret.), ADR Services, Inc.

The following is a summary of many significant employment LAW decisions from 2020:

 

ADMINISTRATIVE REMEDIES

The employee, and not his attorney, must file the DFEH complaint. Ruberson v. Gerdau Reinforcing Steel (C.D. Cal. 2020) 2020 U.S. Dist. 122888; 2020 WL 3891679. Plaintiff’s counsel, and not the plaintiff, filed the DFEH complaint and the right-to-sue letter was in the attorney’s name. Four months after filing the initial complaint in this action, Plaintiff filed an amended charge with the DFEH to substitute in Plaintiff’s name for the Complainant. In dismissing the complaint, the court held that the original charge did not constitute exhaustion of remedies by Plaintiff and that the later amendment to substitute his name as the complainant did not relate back to the earlier charge filed in the attorney’s (At *6.)

The employee waited too long to amend his complaint; MSJ affirmed. Foroudi v. The Aerospace Corporation (2020) no. B291302; 2020 Cal. App. Lexis 1127; 2020 DJDAR 12689. Plaintiff filed a DFEH complaint in January 2013 alleging, without any supporting facts, discrimination, harassment and retaliation because of his age, associational disability, medical leave, national origin and religion. He was given a right-to-sue letter the next day. More than a year later, he filed an amended DFEH complaint alleging that he had been laid off because he is Muslim, over 60 and Persian and that younger, non-Muslims and non-Persians had not been terminated. He filed his complaint in superior court in August 2014. After the case had been moved to the federal court, that court found that plaintiff had not exhausted his administrative remedies. The matter was remanded to the superior court after plaintiff dismissed with prejudice his federal ADEA claim. In June 2015, plaintiff received a new right-to-sue letter from the EEOC. He filed an amended DFEH complaint in April 2016 with a new allegation that the lay-off had a disparate impact. The DFEH did not issue a new right-to-sue notice. The trial court denied the plaintiff’s motion to amend his complaint to add class and disparate impact claims. The appellate court affirmed that order, noting that…

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