©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 191 before making their decision”). See also Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 277-80 (2009) (inadequate investigation can evidence pretext). 162 Kotla v. Regents of Univ. of California, 115 Cal. App. 4th 283, 294 n.6, 295 n.8 (2004). 163 See, e.g., Page v. Superior Court (3NET Sys. Inc.), 31 Cal. App. 4th 1206, 1212-13 (1995); Matthews v. Superior Court (Regents of the Univ. of Cal.), 34 Cal. App. 4th 598, 603-06 (1995). 164 Gov’t Code § 12940(j)(3). The California Legislature overruled Carrisales v. Dep’t of Corrections, 21 Cal. 4th 1132 (1999), in which the California Supreme Court had recognized that FEHA does not apply to actions between co-workers in the absence of a supervisorial relationship. 165 State Dep’t of Health Servs. v. Superior Court, 31 Cal. 4th 1026, 1041 (2003). 166 Id. at 1038-39. 167 Id. 168 Id. at 1044. 169 Vance v. Ball State Univ., 570 U.S. 421, 430-31 (2013) (upholding Seventh Circuit decision that had affirmed summary judgment for the employer; the employer is vicariously liable for harassment perpetrated by its employee only when the employer empowered the harasser to take “tangible employment actions against the victim,” such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits). 170 Gov’t Code § 12926(t). California’s definition of “supervisor,” which has no Title VII counterpart, is “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” Id. This language mirrors the definition of “supervisor” appearing in the National Labor Relations Act. 29 U.S.C. § 152(11). The U.S. Supreme Court in Vance declined to follow the NLRA definition of “supervisor”: “[T]he NLRA may in some instances define ‘supervisor’ more broadly … . But those differences reflect the NLRA’s unique purpose, which is to preserve the balance of power between labor and management … . That purpose is inapposite in the context of Title VII, which focuses on eradicating discrimination. An employee may have a sufficient degree of authority over subordinates such that … the employee should not participate with lower level employees in the same collective-bargaining unit (because, for example, a higher level employee will pursue his own interests at the expense of lower level employees’ interests), but that authority is not necessarily sufficient to merit heightened liability for the purposes of Title VII.” 570 U.S. at 435 n.7. Query whether a California court would adopt this reasoning to limit the definition of supervisor under FEHA, or, instead, would choose to justify vicarious employer liability by relying mechanically on FEHA’s literal statutory language. 171 Gov’t Code § 12940(j)(1). 172 Civ. Code § 1708.5. 173 See § 5.11.2 (Ralph Civil Rights Act, Tom Bane Civil Rights Act). 174 Civ. Code § 1708.7. 175 Civ. Code § 51.9. 176 SB 224, amending Civ. Code § 51.9 and Gov’t Code §§ 12930, 12948. 177 Knoettgen v. Superior Court, 224 Cal. App. 3d 11, 15 (1990) (prior sexual assault not discoverable in sexual harassment case). 178 Tylo v. Superior Court, 55 Cal. App. 4th 1379, 1388 (1997). 179 Rieger v. Arnold, 104 Cal. App. 4th 451, 464 (2002) (citing Evid. Code § 1106(b)). 180 Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 80, 81 (1998). 181 36 Cal. 4th 446 (2005). 182 Id. at 451. 183 Id. at 464. 184 Id. at 469. 185 Gov’t Code § 12940(j)(4)(C) (“Sexually harassing conduct need not be motivated by sexual desire.”). 186 Kelley v. Conco Co., 196 Cal. App. 4th 191 (2011). 187 Taylor v. Nabors Drilling USA, LP, 222 Cal. App. 4th 1228, 1238 (2014) (heterosexual male suffered sexual harassment when his coworkers’ workplace verbal attacks on his heterosexual identity—calling him “queer,” “faggot,” “homo,” and “gay porn star”—were used to harass him, regardless of whether the attacks against him were motivated by sexual desire). 188 SB 820, 2018 bill adding Code Civ. Proc. § 1001. The statutory language suggests that a violation of section 1001 would support a cause of action for civil damages. Id. § 1001(b). 189 SB 332, 2021 bill amending Code Civ. Proc. § 1001. 190 Id. § 1001(e). 191 Id. § 1001(c). 192 AB 3109, adding Civil Code § 1670.11. 193 SB 1300, adding Gov’t Code § 12964.5(a).
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