An employer may not harass (or discriminate or retaliate against) an employee on account of his or her race or ethnicity. California Government Code section 12940. The term “race” includes “traits historically associated with race, including . . . hair texture and protective hairstyles” such as “braids, locks, and twists.” California Government Code section 12926(w)(x).
California Employers Have an Affirmative Duty to Prevent Harassment in the Workplace“Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.” Under FEHA, employers must develop and distribute to employees a clear and easy to understand “harassment, discrimination, and retaliation prevention policy.” California Code of Regulations, title 2, section 11023; DFEH – Workplace Harassment Guide for California Employers.
Aside from taking part in harassment himself or herself, it is also unlawful "for an employer... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." California Government Code section 12940(k). In fact, employers in many situations will still be liable for merely not correcting harassment without a showing that the employers even had actual or constructive knowledge of the harassment taking place.
Proving a Racial Harassment ClaimThe test for proving racial harassment requires the plaintiff to show:
See Judicial Council of California Civil Jury Instructions (CACI) No. 2521A; Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.
An employer’s defenses to a racial harassment claim are limited (e.g. showing that, contrary to what the plaintiff has asserted, no harassment took place). “Since ‘there is no possible justification for harassment in the workplace,’ an employer cannot offer a legitimate nondiscriminatory reason for it.” Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 927.
Additionally, a harasser's animus towards an employee's national origin or ancestry may be the basis for racial discrimination or harassment, even though national origin and ancestry are separately protected classes under FEHA. California Government Code section 12940(a).
There are many ways in which racial harassment, or a hostile working environment, may result without verbal or physical harassment. For instance, an English-only policy at the workplace (especially if it restricts non-English speakers from speaking a language other than English while on rest breaks and other non-work time) may potentially create a hostile work environment for non-English speaking employees. See California Code of Regulations, title 2, section 11028(a)(4); Montes v. Vail Clinic, Inc. (10th Cir. 2007) 497 F.3d 1160, 1170.
An Example of Racial Harassment in the WorkplacePSMG, Inc., dba Pacwest Security Services (Pacwest) provided 24 hour security services for an MCI building in downtown Los Angeles. About 85 percent of Pacwest's security force at the MCI building in question was African–American. Fowler, an African–American man, was hired as the watch commander for the swing shift. He was then shown around the facility by Yager, a Caucasian man who was the day shift watch commander. With Fowler present, Yager conducted the morning briefing of the day shift security officers. After the briefing, Yager introduced the officers to Fowler, asking each one if he had anything to say. When he got to Adams, a large, dark-skinned African–American man, Yager said, “Okay, Mr. Gorilla, what do you have to say?” Adams put his head down in humiliation. Adams then left the room.
Adams reported the incident to the onsite project manager, Rike, a Caucasian man, telling Rike that Yager had called him a “gorilla.” Rike called Yager into his office and Yager denied making the statement, so Rike called several of the other security officers who were present, all of whom confirmed the statement. Rike then told Adams when they were alone that “I don't want you to talk about this to anybody else. I want you to write down for me what took place, and I don't want anyone on staff to discuss this matter any further, and I am going to do an investigation. . . But . . . you won't know what I am going to do to Mr. Yager, because I don't feel like you should know what happens to Mr. Yager.” Rike purportedly interviewed the officers present during the incident and summarized his investigation in a memorandum.
Twelve officers, including Fowler and Adams, later signed a petition entitled “Petition for a Racist Free Work Environment” because nothing appeared to have happened in in relation to Rike’s investigation of the incident. When the petition was submitted to Rike, Rike responded that “If you guys still want me to do anything about this, I'm not going to do anything about this.” Approximately two weeks after the petition had been presented to him, Rike informed Yager that he was to be suspended for two days and that Yager was required to attend at a sensitivity class within the next 120 days. Yager never attended a sensitivity class. Yager resigned several months later. At around the same time as Rike informed Yager of the disciplinary action, Rike terminated the employment of both Fowler and Adams based on pretextual reasons. Adams was terminated for not attending a meeting Adams testified he had permission from Rike to miss. Rike testified that Fowler quit while other evidence suggested Fowler was terminated based of “some name calling” and concerns Pacwest could lose its MCI account because of the Petition for a Racist Free Work Environment.
Fowler and Adams filed separate lawsuits against Pacwest. The cases were tried separately and both plaintiffs were awarded damages.
Contact UsIf you have experienced racial harassment at your workplace, or if you believe your employer or former employer otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact Us via our online form.