Severe or Pervasive?

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 The 4th Appellate District reversed in an unpublished opinion.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.

“As far as the harassing conduct being severe, Caldera described the conduct he was subjected to as: demeaning, embarrassing, harmful, and hurtful. Caldera testified that every time Grove mocked or mimicked his stutter, he did so in front of others. Grove’s harassing conduct over the prison’s radio system was heard by about 50 employees and appears to have been particularly egregious. The shift change incident occurred in front of about 24 employees. The training incident occurred in front of an unknown number of supervisors. Dr. Jordan testified that the harassing conduct was at times done in a mean spirited and harmful manner. A psychologist testified that the harassment caused Caldera to experience psychological disorders. Based on the totality of circumstances, a jury could reasonably find that the harassing conduct was “‘severe.'”

As far as the harassing conduct being pervasive, Dr. Jordan said that he witnessed the harassing conduct on at least 12 occasions. Caldera estimated that Grove had mocked or mimicked his stutter anywhere from five to 15 times. Although neither Dr. Jordan nor Caldera provided exact dates as to when each incident occurred, their testimony reasonably indicates that the harassing conduct roughly took place over a two- year time frame from 2006 to 2008. . . . Dr. Jordan further testified the harassing conduct was so pervasive that he regarded it as part of the culture at the prison. Dr. Jordan’s testimony was also bolstered by the testimony of Sergeant Lara, who witnessed the harassing conduct during the training class.

It seems striking to us that the harassment was so pervasive within the institution that Grove apparently felt he could openly mimic Caldera’s stutter in front of his peers (a group of prison supervisors) without any sense of shame or fear of reprisal. It appears plain to us there was sufficient evidence upon which the jury could reasonably determine that the harassing conduct was “pervasive.”