What Issues are Involved in a Harassment and Discrimination Claim in California?
The various issues in a harassment and discrimination claim under California’s Fair Employment and Housing Act (FEHA)n are described in the recent appellate decision in Wawarzenski v. United Airlines.
Alexa Wawrzenski was a flight attendant employed by United Airlines, and it investigated and ultimately fired her for having a social media account featuring pictures of herself in uniform and wearing a bikini, with a link to a subscription- based account advertised as providing “[e]xclusive private content you won’t see anywh[ere else].”
Wawrzenski sued United, alleging that she endured years of gender discrimination and harassment, that United retaliated against her for complaining about the discrimination and harassment by terminating her employment, that United’s investigation into her social media and her termination discriminated against her as a woman, that United failed to prevent its employees’ misconduct, and that United intentionally caused Wawrzenski emotional distress.
United moved for summary judgment or in the alternative for summary adjudication on all causes of action and on Wawrzenski’s claim for punitive damages. The trial court granted United’s motion in its entirety, and Wawrzenski appealed from the ensuing judgment.
The appellate court concluded the trial court erred in granting United’s motion for summary adjudication on Wawrzenski’s causes of action under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.).
Wawrzenski began working for United in October 2015 as a flight attendant based in Los Angeles.
As a United employee, Wawrzenski benefitted from and was subject to certain employment policies. United’s Working Together Guidelines include four categories: dignity and respect, honesty, professionalism, and responsibility.
United also has social media guidelines that apply to employees’ social networking activities while on or off the job, including social networking you use without a name or under a false name.
Wawrzenski describes her “body type” as having a very small waist in proportion to her lower body and “larger hips.” She claimed that throughout her employment she experienced harassing, derogatory, and objectifying comments about her body and the way she looked in her uniform.
The types of comments she heard “several times a month” included “offensive jokes” about her “‘breaking necks’” of male employees who looked at her, remarks about her “‘butt,’” and questions about where she had her “‘surgery done’” and how much she paid for “her body.” Wawrzenski said that “at times” she experienced “an unwanted sexual advance.”
Wawrzenski filed a complaint with the Department of Fair Employment and Housing (now the Civil Rights Department) and in October 2020 obtained a right-to-sue letter. She alleged in her ensuing lawsuit causes of action for gender discrimination, hostile work environment harassment, and retaliation in violation of FEHA; failure to prevent discrimination, harassment, and retaliation in violation of FEHA; whistleblower retaliation in violation of Labor Code section 1102.5; wrongful termination in violation of public policy; and intentional infliction of emotional distress.
FEHA prohibits an employer from subjecting an employee to an adverse employment action based on the employee’s protected status.
In evaluating claims of discrimination under FEHA, California courts apply the burden- shifting approach set forth in McDonnell Douglas Corp. v. Green.
Under this approach, if the plaintiff establishes a prima facie case supporting his or her discrimination claim, the burden of production shifts to the employer to rebut the presumption of discrimination by offering a legitimate, nondiscriminatory reason for the adverse employment action.
To state a prima facie case of discrimination under FEHA, the plaintiff must show (1) she was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive.
The plaintiff must establish a causal nexus between the adverse employment action and her protected characteristic.
Direct evidence is evidence which, if believed, proves the fact of discriminatory animus without inference or presumption.
Because direct evidence of intentional discrimination is rare, the plaintiff must usually prove discrimination circumstantially.
Plaintiffs in FEHA cases can prove their cases by presenting either direct evidence, such as statements or admissions, or circumstantial evidence, such as comparative or statistical evidence.
Wawrzenski submitted a variety of evidence to attack United’s proffered reasons as pretexts for discrimination, including evidence of disparate treatment, United’s failure to investigate her complaints of discrimination and harassment, and a discriminatory atmosphere. Together, this evidence cast sufficient doubt on United’s nondiscriminatory reasons for terminating Wawrzenski’s employment to defeat United’s motion for summary adjudication on her cause of action for discrimination.
Nothing in the Guidelines or FEHA required Wawrzenski to report suspected discrimination and harassment through every channel available to her. Moreover, Wawrzenski did complain “in writing” to Mark about the alleged discrimination and harassment in the statement she prepared following the investigation meeting on July 2, 2020. And Perez admitted United “should have” investigated those complaints.
It is an unlawful employment practice for an employer to “harass” an employee based on membership in a protected class, including because of sex.
Harassment includes verbal harassment such as epithets, derogatory comments or slurs on a basis enumerated in FEHA.
Sexual harassment also includes any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.
Hostile work environment harassment is a type of sexual harassment that has the purpose or effect of either interfering with the work performance of an employee, or creating an intimidating workplace.
To prevail on a claim of hostile work environment under FEHA, an employee must show he or she was subjected to harassing conduct that was (1) unwelcome, (2) because of sex or gender, and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment.
The working environment must be evaluated in light of the totality of the circumstances.
These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.
The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.
Simple teasing, offhand comments, and isolated incidents (unless extremely serious are not sufficient to create an actionable claim of harassment.
The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position.
A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive work environment.
A hostile work environment exists when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.
As discussed in the context of Wawrzenski’s cause of action for discrimination, Wawrzenski submitted sufficient circumstantial evidence to create a triable issue of material fact regarding whether United’s stated reasons for terminating Wawrzenski were pretextual.
From that evidence, a reasonable trier of fact could find that, even if Wawrzenski’s Instagram account with its link to a subscription-based OnlyFans page violated United’s social media policy, United retaliated against Wawrzenski by terminating her employment after she complained about the disparate enforcement of that policy between men and women.
LESSONS:
1. FEHA prohibits an employer from subjecting an employee to an adverse employment action based on the employee’s protected status.
2. Under the approach set forth in McDonnell Douglas Corp. v. Green, if the plaintiff establishes a prima facie case supporting his or her discrimination claim, the burden of production shifts to the employer to rebut the presumption of discrimination by offering a legitimate, nondiscriminatory reason for the adverse employment action.
3. To state a prima facie case of discrimination under FEHA, the plaintiff must show (1) she was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive.
4. The plaintiff must establish a causal nexus between the adverse employment action and her protected characteristic.