Tuesday, December 25, 2012

Court of Appeal: Employee May Use Ralph Act in Certain Sexual Harassment Cases

Sylvia Ventura was a custodian, working for American Building Maintenance or ABM.  According to her lawsuit, she suffered serious harassment, including touching, threats, etc.  She sued not under the Fair Employment and Housing Act, but under what is known as the Ralph Act, Civil Code Section 51.7.   That section provides in part:

All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics.

So, one of the characteristics in Section 51(b) or (e) is sex. Therefore, violent acts that would be consistent with "sexual harassment" in employment law fall within this definition. 

But the Ralph Act does not require employees to file an administrative charge, the remedies are different, and the statute of limitations is longer. There also is no requirement that the offending conduct satisfy the "hostile work environment" standard applicable to sexual harassment cases.

Upholding a jury's verdict, the court of appeal decided (2-1) that the Ralph Act applies in employment cases, despite overlap with the FEHA. There is precedent for this conclusion.  But the court also held that the Act covered the conduct alleged, even though there was little to no evidence that the harasser was motivated by negative feelings about the plaintiff's sex, i.e., hate.  Rather, the evidence at trial showed that he was enamored / in love, which caused him to engage in inappropriate conduct. 

As the dissent points out, the majority's decision may expand the Ralph Act to cover more than it was intended to address.  It also potentially creates a major collision with the Fair Employment and Housing Act for the reasons I explained above. 

The rest of the opinion, unfortunately, is an indictment of the defense attorneys' advocacy.  For example, the court of appeal noted that the jury found for the plaintiff on a negligence claim, which should have been barred by Workers' Compensation preemption. The court of appeal held that issue was waived because it was not argued in the trial court.  The court of appeal noted other waivers and alleged errors as well, including the failure to differentiate among the defense entities to identify the employer and exonerate the non-employers.  Reading this opinion, one can't help but conclude that getting this employment law litigation business right is tough. There are a lot of time-sensitive substantive and procedural matters to juggle, especially at trial.

The case is Ventura v. ABM Industries Inc., et al. and the opinion is here.