Category Archives: Discrimination

First District Issues Same-sex Harassment Opinion

On Wednesday, the First District held that conduct including numerous gifts, frequent lunch purchases, along with some sexual jokes and displays of pornographic computer images, over a period of several months, was sufficient for a reasonable jury to conclude a supervisor engaged in a pervasive pattern of harassing conduct.  Lewis v. City of Benicia, No. A134078, __ Cal. App. 4th __ (1st Dist. Mar. 26, 2014).


Plaintiff, a heterosexual man, sued his former employer, the City of Benicia, and two former male supervisors, bringing claims for sexual harassment and retaliation.  Id. at *1.  The trial court granted summary judgment in favor of the individual defendants and judgment on the pleadings for the City as to the sexual harassment claims.  The City prevailed at trial on the retaliation claim.  The First District reversed summary judgment as to one individual defendant and reversed the judgment on the pleadings for the City.

The court held that the evidence allowed an inference that Hickman was motivated by sexual interest.  Id. at *7.

Some of Hickman’s alleged acts had sexual connotations. Lewis testified Hickman showed Lewis images on Hickman’s office computer that included a video of a penis in a rat trap and an image of a woman with lopsided breasts.  Hickman told Lewis “risqué” jokes, including: “ ‘How do you make your wife moan then scream? You fuck her in the ass and then you wipe it on your drapes.’ ”

Moreover, Hickman’s alleged course of conduct allows an inference he was pursuing a romantic or sexual relationship with Lewis. Lewis testified Hickman gave him about 30 different items as gifts during the time he worked at the water treatment plant. The gifts included “tuxedo underwear,” with ruffles and a bow tie. Hickman also gave Lewis hats, T-shirts, wine, shot glasses and backpacks. Hickman frequently bought lunch for Lewis. On one occasion during a break, when Lewis picked up Hickman’s cigarette, Hickman said: “[W]hy don’t you just kiss me[?]” Hickman once said Lewis should visit his home.

Id. at 8.  The Court concluded that Hickman alleged course of conduct was one from which a reasonable jury could infer he was pursuing a relationship with Lewis and was acting from genuine sexual interest.  Id. at *9.

The Court further concluded that the alleged conduct was sufficient for a reasonable jury to conclude that Hickman engaged in a pervasive pattern of harassing conduct.  “Based on the course of alleged conduct summarized above, which included numerous gifts and frequent lunch purchases, along with some sexual jokes and displays of pornographic computer images, over a period of several months, a reasonable jury could conclude Hickman engaged in a pervasive pattern of harassing conduct.” Id. at *10.  The Court noted that “whether Hickman’s alleged conduct unreasonably interfered with Lewis’s work performance is a relevant factor in determining whether a hostile work environment existed, but no single factor is required.”  Id. at *11.

Judges & Attorneys

Acting Presiding Justice Robert L. Dondero delivered the opinion, with Justice Kathleen M. Banke and Judge Diana Becton (sitting by assignment) concurring.  The trial judge was Hon. Robert S. Bowers.

Counsel for Plaintiff and Appellants: Bruce A. McIntosh of Bergquist Wood McIntosh Seto LLP; Rhonda D. Shelton-Kraeber of Kraeber Law Office.

Counsel for Defendants and Respondents: Stubbs & Leone: Louis A. Leone and Kathleen L. Darmagnac; Mark E. Davis and Eric J. Bengston of Davis & Young.


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Northern District of California Holds That Allegation of Denial of Overtime Based on Race or Sex States Discrimination Claim Under Title VII

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The Northern District of California considered whether an allegation of failure to allow overtime because of a plaintiff’s race or sex states a claim for discrimination under Title VII.  The court held that it did.

In Moore v. Contra Costa College District, No. C 09-4781 MEJ, 2010 WL 3324895 (N.D. Cal. Aug. 23, 2010) (slip op.), Plaintiff filed an employment discrimination complaint as a pro se litigant, bringing suit under Title VII of the Civil Rights Act of 1964, specifically 42 U.S.C. § 2000e-5. Continue reading

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In a Split Opinion, Ninth Circuit Affirms Christian Humanitarian Organization’s Exemption From Title VII’s Prohibition Against Religious Discrimination

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In Spencer v. World Vision, Inc., No. 08-35532, — F.3d —-, 2010 WL 3293706 (9th Cir. Aug. 23, 2010), the Ninth Circuit Court of Appeals considered whether a faith-based humanitarian organization is exempt from Title VII’s prohibition against religious discrimination.  Defendant World Vision describes itself as “a Christian humanitarian organization dedicated to working with children, families and their communities worldwide to reach their full potential by tackling the causes of poverty and injustice.” Id. *1.   Continue reading

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Cal. Supreme Court Issues Opinion in Reid v. Google, Rejecting Strict Application of Stray Remarks Doctrine in Cal. Discrimination Cases

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The California Supreme Court today issued its decision in Reid v. Google.  The Court rejected strict application of the stray remarks doctrine in California discrimination cases.  Under this doctrine, statements that non-decision-makers make or that decision makers make outside of the decisional process are deemed stray, and they are irrelevant and insufficient to avoid summary judgment.

Plaintiff Brian Reid filed an age discrimination lawsuit against his former employer, Google, Inc. The trial judge, Hon. William J. Elfving, granted Google‘s summary judgment motion relating to plaintiff‘s claims. The Court of Appeal reversed.

The Court decided two issues:

  1. Does a trial court‘s failure to rule on a party‘s evidentiary objections relating to a summary judgment motion waive the objections on appeal?
  2. Should California courts follow the federal courts in adopting the stray remarks doctrine in employment discrimination cases?

The Court of Appeal found that the trial court’s failure to issue express rulings on evidentiary objections did not waive those objections on appeal.  And the Court of Appeal further refused to apply the stray remarks doctrine to exclude alleged discriminatory statements that Reid‘s supervisors and coworkers made.

The Supreme Court agreed with the Court of Appeal’s conclusions:

Regarding the waiver issue, the Court of Appeal correctly determined that a finding of waiver does not depend on whether a trial court rules expressly on evidentiary objections and that Google‘s filing of written evidentiary objections before the summary judgment hearing preserved them on appeal. (Code Civ. Proc., § 437c, subds. (b)(5), (d).)  After a party objects to evidence, the trial court must then rule on those objections. If the trial court fails to rule after a party has properly objected, the evidentiary objections are not deemed waived on appeal.

Regarding the stray remarks issue, the Court of Appeal also correctly determined that application of the stray remarks doctrine is unnecessary and its categorical exclusion of evidence might lead to unfair results.

Robin Weideman of the California Labor & Employment Law Blog gives a nice analysis of the stray remarks portion of today’s ruling.

The attorneys for plaintiff and appellant were Barry L. Bunshoft, Ray L. Wong, Paul J. Killion, Lorraine P. Ocheltree, Eden E. Anderson and Allegra A. Jones.  Charlotte E. Fishman for California Employment Lawyers Association filed an Amicus Curiae on behalf of Plaintiff and Appellant.  Thomas W. Osborne, Melvin Radowitz and Barbara A. Jones for AARP also filed an Amicus Curiae on behalf of Plaintiff and Appellant.

The attorneys for defendant and respondent were Fred W. Alvarez, Marina C. Tsatalis, Amy K. Todd, Marvin Dunson III, Koray J. Bulut, Elizabeth C. Tippett, Jeanna Steele, Gary M. Gansle of Wilson Sonsini and Paul W. Cane, Jr. of Paul Hastings.  Greines, Martin, Stein & Richland and Robert A. Olson for Association of Southern California Defense Counsel filed an Amicus Curiae on behalf of Defendant and Respondent.  Orrick, Herrington & Sutcliffe‘s Gary S. Siniscalco, Patricia K. Gillette, Greg J. Richardson and Lynne C. Hermle on behalf of the Employers Group and California Employment Law Council also filed an Amici Curiae on behalf of Defendant and Respondent. Jonathan B. Steiner, Jay-Allen Eisen, Jon B. Eisenberg, Dennis A. Fischer, Steven L. Mayer, Robert A. Olson, Douglas R. Young, and Robin Meadow also filed an Amicus Curiae.


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