Matthews v. Superior Court (34 Cal. App. 4th 598, 1995)

Opinion

GODOY PEREZ, J.

Petitioner is the plaintiff in a superior court action against his former employer, the Regents of the University of California (Regents), and several individual defendants, alleging he was the victim of sexual harassment in violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) The individual defendants demurred to petitioner’s amended complaint on the ground that they could not be held personally liable for damages under the FEHA, which confines such liability to the offending party’s employer. We hold that these defendants, all supervisory personnel who were aware of, and at times participated in, the unlawful conduct, are “persons” subject to personal liability for sexual harassment under the FEHA.

Facts and Procedural History

Petitioner was employed as a principal admitting clerk at the Emergency Medicine Center at the University of California, Los Angeles (UCLA). Petitioner, a heterosexual male, contends he was subjected to verbal and physical sexual harassment by his homosexual male co workers, including his immediate supervisors, defendants A. J. Gonzales and Jorge Benitez.

Shortly after petitioner completed his job training, many of petitioner’s coworkers began to subject him to verbal and physical sexual harassment because of his heterosexual orientation. The verbal sexual harassment included “sexual advances, propositions for sexual relations, and lewd, vulgar and lascivious comments of both a sexually explicit or implicit nature.” The physical sexual harassment included “male co-workers brushing and/or rubbing their bodies, in particular their genitals and buttocks, against [petitioner’s] person, touching, stroking, and caressing [petitioner’s] neck, back, and arms, and numerous attempts to give [petitioner] massages.” Petitioner was told by coworkers that his position as principal admitting clerk was usually occupied by male homosexuals, and was “commonly known as a ‘gay’ job.”

Petitioner’s attempt to rebuff these sexual advances and comments angered his coworkers, particularly his supervisors Gonzales and Benitez, who responded by redoubling their efforts. When his working environment became intolerable, petitioner arranged a meeting with the medical director of the emergency medicine center, defendant Dr. Marshall Morgan. Dr. Morgan told petitioner he had become aware of the “rampant and ongoing sexual harassment” in the emergency medicine center workplace long before petitioner complained. However, Dr. Morgan stated he was leaving on vacation and petitioner would have to speak with defendant Linda DaPar, the center’s administrative director.

Initially, DaPar refused to meet with petitioner, but eventually did so at his insistence. The meeting was conducted in a “hostile, threatening and condescending manner.” DaPar characterized the harassment of which petitioner complained as “trivial and insignificant,” and “belittled [petitioner’s] experiences and reactions.” DaPar refused to take any corrective action in response to petitioner’s complaints. Despite the fact that DaPar had assured petitioner their conversation would remain confidential, she immediately telephoned Gonzales and told him petitioner had accused him, Benitez and other coworkers of sexual harassment. Because of this breach of confidentiality, and the fact that petitioner had initiated an investigation by UCLA’s labor relations manager, petitioner was thereafter subjected to the “silent treatment” by Gonzales, who refused to speak to him at all, and Benitez, who spoke to him only about work-related matters. Petitioner’s coworkers either shunned him altogether or increased their sexual harassment of him because he was a “snitch,” a “fink,” and a “complainer who was just trying to get his supervisors fired.”

Gonzales and Benitez continued to “encourage, condone and approve of’ the increased harassment. Defendants also subjected petitioner to disparate treatment by changing his work schedule and granting preferential treatment to a more recently hired worker, who petitioner believed was homosexual.

Petitioner, a pre-med student, enjoyed the job itself and viewed it as an excellent opportunity to get experience in the medical field. Due to the hostile work environment, however, petitioner was unable to perform his duties, and eventually took a leave of absence, from which he never returned. Petitioner alleges that he was constructively discharged due to defendants’ unlawful employment practices.

After receiving a “right to sue” letter from the Department of Fair Employment and Housing, petitioner filed this action against the Regents, Dr. Morgan, DaPar, Gonzales and Benitez. (Petitioner did not name any of his nonsupervisory coworkers as defendants.) The amended complaint contains seven causes of action, four of which allege violations of the FEHA for: (1) sexual harassment by creation of a hostile work environment; (2) retaliation; (3) constructive discharge; and (4) disparate treatment.

The individual defendants demurred to the FEHA causes of action on the ground that the FEHA does not impose individual liability.

On September 12, 1994, respondent court sustained the individual defendants’ demurrers to the FEHA causes of action, without leave to amend, on the ground that the FEHA does not impose personal liability on individuals who violate its provisions. The court also sustained the demurrers of all defendants to the fourth cause of action for disparate treatment.

This petition was filed October 20, 1994. On October 27, 1994, we issued an alternative writ of mandate directing respondent court to vacate its orders sustaining defendants’ demurrers to the first through fourth (FEHA) causes of action of the amended complaint, and enter a new and different order overruling the demurrers. Respondent court did not comply with the alternative writ. Defendants filed a return on December 29, 1994, and the matter was argued January 13, 1995.

Discussion

The FEHA establishes that freedom from job discrimination on certain grounds, including a person’s sex, is a civil right. (§ 12921.) It declares that discrimination on the specified grounds is against public policy (§ 12920) and constitutes an unlawful employment practice. (§ 12940; Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213 [185 Cal.Rptr. 270, 649 P.2d 912].) The public policy underlying the FEHA is “to prohibit harassment and discrimination in employment on the basis of any protected classification. Such conduct whether intentional or unintentional is a violation of the civil rights of California citizenry and has been shown to decrease productivity in the workforce. . . .” (Stats. 1984, ch. 1754, p. 6403.) The Legislature has further declared that “. . . [T]he practice of denying employment opportunity and discriminating in the terms of employment for such reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advance [j/c], and substantially and adversely affects the interest of employees, employers, and the public in general. . . . [^Q . . . [