• Dean Royer

Failure to prevent harassment

Can there be a failure to prevent harassment when the jury finds harassing conduct occurred but it was not severe or pervasive so as to constitute unlawful harassment?

The Second District Court of Appeal recently considered the relationship between a failure to prevent harassment or discrimination claim and the underlying harassing or discriminatory conduct. On March 6, 2015, in Dickson v. Burke Williams (Cal. App. 2d Dist. Mar. 6, 2015) 2015 Cal. App. LEXIS 209, the court reviewed a jury’s verdict finding a failure to prevent sexual harassment and discrimination.

In this case, the employee sued her employer alleging harassing and discriminatory conduct by two customers. At trial, the employer proposed a special verdict form that directed the jury to skip deliberations on the employee’s claims for failure to prevent harassment and discrimination if there was no finding of underlying harassment and discrimination. The trial court declined.

The jury found that the employee was subjected to unwanted harassing conduct because of her sex. But it also decided that the conduct was not severe or pervasive. Consequently, the jury concluded that the employer was not liable for sexual harassment. The jury also found in favor of the employer on the employee’s sex discrimination claim. Nevertheless, the jury decided the employer was liable for failing to prevent sexual harassment and sex discrimination.

On appeal, the employer contended that the trial court improperly denied a motion to enter a judgment in its favor (judgment notwithstanding the verdict). The employee asserted that the finding of harassing conduct was sufficient to support the jury’s verdict in her favor on the failure to prevent sexual harassment claim.

The court of appeal disagreed. It reviewed the decision in Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, which recognized that a failure to prevent sexual harassment is a distinct claim. The court in Dickson noted that the court in Trujillo emphasized that the absence of unlawful harassment precludes a claim for failure to prevent harassment. The appellate court also pointed to the Directions for Use for the special verdict form for failure to prevent claims. They state that the jury should not answer any of the questions unless it finds that the underlying claim is proved.

The court in Dickson also determined that it would be anomalous to provide a remedy for failure to prevent acts that are not unlawful. This would allow an employee to succeed on a failure to prevent claim even if the underlying conduct was nothing more than lawful conduct such as teasing, an offhand comment, or an isolated incident. The court of appeal concluded by indicating that the same logic applies to failure to prevent discrimination claims, i.e., there is no failure to prevent claim unless the underlying conduct is unlawful discrimination.


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