Under the Fair Employment and Housing Act, an employee with a disability can sue his or her employer and supervisors for disability harassment. The employee must prove the harassment was either “severe OR pervasive.” (This standard is often misquoted as “severe AND pervasive.”)
Plaintiff is a correctional officer at a state prison who stutters. Between 2006 -2008, some of the prison’s employees mocked or mimicked his stutter about a dozen times. A supervisor participated in the mocking and mimicking of Plaintiff’s stutter. According to a senior prison official who testified at trial, this mocking reflected the prison culture.
Plaintiff sued the California Department of Corrections and Rehabilitation and the supervisor for disability harassment and related claims. The trial court granted summary judgment for Defendants. The 4th Appellate District reversed in an unpublished opinion.
The case went to trial and a jury found Defendants harassed Plaintiff because of his disability and found the harassment both severe and pervasive. Plaintiff had no economic damages. The jury awarded him $500,000 in noneconomic damages. The trial court found the damage award to be excessive and granted defendants’ motion for a new trial solely as to that issue. Both parties appealed.
I will write more about this case in my article – “The Neutral Corner” published monthly in the Los Angeles Daily Journal. For now, one of the key takeaways from this case is the discussion of the the “severe or pervasive” standard.
Here is the evidence the court found sufficient to constitute both severe AND pervasive harassment. Again, either prong would have sufficed to impose liability on Defendants.
Given the summary of this record, one wonders why two Attorneys General, Harris and Becerra, thought it was worth spending taxpayer money to defend against this conduct. Who knows if reasonable settlement offers were made? Many, if not most, employers would have a hard time paying a significant sum of money to a current employee whose stutter or accent or limp was mocked a dozen times or so over a two-year period. Perhaps this case will cause employers to step up training not just to address METOO sexual harassment issues but other types of harassment as well. Could the state have fired this supervisor? Would termination for mocking a subordinate’s stutter have survived the grievance process? What training did the Department of Corrections provide on equity issues? Why is their a prison doctor who tolerates “harassing conduct done in a mean spirited and harmful manner without doing anything about it? As usual, this case generates more questions and food for thought than the holdings on the various issues would indicate.
The judge granted a motion for new trial unless Plaintiff accepted a reduction in damages to $100,000 but did not file a timely statement of decision. More on that later. Also, the court called out the State for misrepresenting a holding of a case. Yikes! More on that later too.