Threats or Violence Based on Disability, Race, Gender, or Sexual Orientation

Generally, every person has the right to be free “from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations.” California Civil Code section 43. This provision codifies causes of action for assault, battery, and invasion of privacy. Marsh v. San Diego County (S.D. Cal. 2006) 432 F.Supp.2d 1035, 1057-58.

The Unruh Civil Rights Act expanded upon this right, proclaiming that all persons “are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments.” California Civil Code section 51.

The Unruh Civil Rights Act applies to non-employment settings, including business establishments such as hotels, motels, restaurants, theaters, hospitals, rental housing, retail establishments, public agencies, and nonprofit organizations that have a business purpose. Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 500. However, an employee may be able to bring a claim under the Unruh Civil Rights Act if the conduct in the workplace amounts to a hate crime. Moreover, a worker who is considered an independent contractor under California law may be able to bring an Unruh Civil Rights Act claim against the entity that hired the independent contractor. See Payne v. Anaheim Memorial Medical Center, Inc. (2005) 130 Cal.App.4th 729.

In addition, all individuals in California who have a position in a labor dispute, or a political affiliation, have a right to be free from any violence or intimidation by threat of violence against them on the basis of the protected status for which they were discriminated against. This important freedom is codified in California Civil Code section 51.7, also known as the Ralph Civil Rights Act of 1976.

Specifically, the statute reads: “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 [section 51, e.g. sex, race, color, religion, ancestry], or position in a labor dispute, or because another person perceives them to have one or more of those characteristics.” California Civil Code section 51.7 (b)(1). The characteristics enumerated are merely examples and other bases for a discrimination claim under the Ralph Civil Rights Act are possible.

The term “intimidation by threat of violence” includes making or threatening to make a report to law enforcement “that falsely alleges that another person has engaged in unlawful activity.” California Civil Code section 51.7 (b)(2).

Tom Bane Civil Rights Act, California Civil Code section 52.1, was later enacted to supplement the Ralph Civil Rights Act as an additional legislative effort to deter violence. The stated purpose of the bill was to fill in the gaps left by the Ralph Civil Rights Act by allowing individuals to seek injunctive relief (including temporary restraining orders or preliminary or permanent injunctions) to prevent the violence from occurring.

Unlike a claim under the Unruh Civil Rights Act, a Ralph or Tom Bane Civil Rights Act claim can be made by an employee against an employer. Stamps v. Superior Court (2006) 136 Cal.App.4th 1441.

In Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, Ms. Ventura worked for ABM Industries Inc. (ABM) as a janitor. In December of 2004, Manzano became her supervisor. Manzano began flirting with Ventura and telling her that she was pretty and that he was in love with her. Ventura rebuffed his advances. While her previous supervisor only checked her work when it was done, Manzano started checking on Ventura increasingly often, sometimes checking on her as many as seven times during her shift. He would stand close to her, compliment her, look at her buttocks, and ask her about her family. Ventura was afraid and she told Manzano to leave her alone. Over time, Manzano became aggressive. Once, he pulled Ventura’s arm, pushed her against a wall, and told her that he liked her and to pay attention to him. Another time, Manzano asked Ventura to kiss him, and leaned in close. A cleaning cart blocked him from kissing her.

It eventually became known that Manzano had also touched and kissed two other female janitors. Manzano was frequently drunk at work. In addition, another employee later came forward saying that Manzano made her have relations with him at work, threatening to call her husband and say that they were lovers if she did not comply.

Later, after Ventura saw Manzano and other employees drinking in the janitor's room, Manzano came up to her, drunk, and shouted at her and told her that he liked her. The following shift, Ventura was cleaning the handicapped stall in a men's bathroom when Manzano entered the bathroom and closed the door. He grabbed Ventura’s arms from behind, squeezed her, and “started rubbing his parts on [her] buttocks.” She tried to shout, but he held his arm across her neck so tightly she could not breathe, bruising her. Manzano also bit her. Ventura managed to break free. She hid in an office, under a desk, until she felt safe.

She left the building, then returned, afraid that if she left, she would lose her job. Ventura called her area supervisor, who was good friends with Manzano, and told him what had happened and that she was going to call the police. The area supervisor told her not to, because company ethics did not allow it. Nonetheless, Ventura would end up going to the police, who documented her bruises.

Ventura called Manzano and told him that she was leaving and that he had to pick up her keys, and that she had called the area supervisor. When Manzano came downstairs, Ventura threw the keys at him and took off running to her car. Manzano followed her, saying “oh, we're going to file a lawsuit, right?” and telling her that he was a very vengeful person. She got into her car. Manzano held the door so that she could not close it, and reached in and banged on the steering wheel, swearing at her and telling her that he loved her. She put the car in reverse, and he let go.

ABM's regional human resources director took almost a month to contact Ventura and set up an appointment. During the meeting, the human resources director was distracted, took phone calls, and failed to accurately record what Ventura said. When Ventura mentioned Manzano's relationship with a coworker, the human resources director suggested that Ventura was jealous.

Despite the allegations against Manzano, ABM did not fire Manzano. Manzano was not disciplined for any of his conduct, not even for harassing phone calls to Ventura, which Ventura had documented with voicemail recordings and telephone records. Although Manzano was suspended for several days immediately after Ventura's complaint, he was reinstated before human resources spoke to Ventura, and was paid his salary for the days he had been suspended.

Ventura later sued ABM, asserting several causes of action, including violations of the Ralph Civil Rights Act of 1976. A jury later found that Manzano threatened violent acts against Ventura, that his perception of her sex was a motivating reason for his conduct, and that a reasonable person in Ventura's position would have believed that he would carry out his threats and would have been intimidated by his conduct. The jury found that ABM learned of Manzano's conduct after it occurred, and approved and ratified the conduct. The jury was asked to award $100,000 in compensatory damages, attributing the whole amount to past mental suffering. Judgment was entered in the amount of the compensatory damages, plus a $25,000 civil penalty pursuant to section 51.7. On appeal, the California Court of Appeal, Second District, Division 5 affirmed the judgment.

Accordingly, if an employee is part of a protected class, such as a specific race, then an employer cannot discriminate against him or her based on that classification by using violence or threats of violence, under California Civil Code section 51.7. For instance, assume an employee is African American, and the employer is Caucasian. The employer cannot, on the basis of the employee’s race, refuse to promote the employee under the Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996. Moreover, if the employer also uses violence or intimidation as part of his or her discriminatory actions against the employee, such as by threatening to hurt the employee if the employee tells anyone why he was denied a promotion, the employee could also likely sue the employer for violations of California Civil Code section 51.7.

Remedies available under the law include:

• Restraining Orders
• Actual Damages
• Punitive Damages
• Civil Penalties
• Attorney Fees

If your right to be free from violence or threatened violence at your workplace has been violated, contact the renowned attorneys at Kokozian Law Firm, APC. Ask about our free initial consultation.