California Labor &
Employment Law Blog

Dec. 30 2010

Employer Must Take Corrective Action to Cure Third-Party Harassment

Topics: Court Decisions, Discrimination, Harassment & Retaliation

A California Court recently confirmed an employer's duty to take corrective measures to prevent a hostile work environment caused by third parties -- even when this type of harassment or hostile work environment may be "inherently part of the job."

In Turman v. Tuning Point of Central California, Plaintiff Turman was a resident monitor at a halfway house for Defendant Turning Point. Residents of the halfway house were predominantly male prisoners who were being transitioned into the workforce and society prior to their full release on parole. Turman alleges that while she was at work, male residents propositioned her for sex, exhibited sexual gestures in front of her, and called her lewd and sexually offensive names. When Turman complained to her supervisor, her supervisor simply suggested she issue fewer disciplinary citations for the residents' violation of various rules, which he surmised was the cause of their harassing conduct. The case was tried before a jury, which found that, while Plaintiff was subjected to severe and widespread harassment because she was a woman and that created a hostile work environment, Turning Point did not "fail to take immediate and appropriate corrective action."

The Court of Appeal reversed the judgment, finding there was no substantial evidence to support the jury's verdict since Defendant's only response to the reported abuse was her supervisor telling Plaintiff to issue fewer disciplinary citations to residents so they would be nicer to her, which does not amount to corrective action to alleviate the abuse. While the Court acknowledged that male residents living under restricted/penal conditions are likely to harass or mistreat their female supervisor, and that enduring inappropriate behavior by prisoners may be "inherently" part of the job, that does not absolve an employer from its legal responsibility under FEHA to take immediate and appropriate action to correct the situation. .

This case is a good reminder to employers that they must address complaints of harassment and hostile work environment even when the harassment is perpetrated by third parties, and evenin the unusual situation wherethe hostile work environment may be an expected and inherent part of the job.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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