The Customer Is Not Always Right

Businesses succeed by satisfying their customers. In a phrase coined by either Marshall Field or Harry Gordon Selfridge: "The customer is always right." But, where a customer's wishes collide with an employee's legal rights, the employer may have to ignore the customer's wishes.

A 2010 case from the United States Court of Appeals for the Seventh Circuit illustrates the dangers of acceding to customer preferences. In Chaney v. Plainfield Healthcare Center, 612 F.3d 908 (7th Cir. 2010), a white patient said that he only wanted to receive care from white health care providers. The facility complied by issuing written instructions that no Black providers were to enter the patient's room. That was consistent with its policy of honoring patients' racial preferences. The Court of Appeals found that the policy contributed to an unlawful hostile environment. The EEOC Compliance Manual similarly states that "customer preference is not a defense to race discrimination."

The Cheney court distinguished cases that had recognized gender as a bona fide occupational qualification in the health care and prison fields, where the customers had privacy concerns. See Jennings v. New York State Office of Mental Health, 786 F. Supp. 376 (S.D.N.Y. 1992). A recent case from the Southern District of New York acknowledged the need to accommodate privacy concerns, but ruled that there were means for accommodating that interest other than a flat ban on appointing female correctional officers to a particular position. See White v. Department of Correctional Services, Case No. 08-0993 (S.D.N.Y. Sep. 30, 2011).

A 2002 California Court of Appeal case recognized another limited exception to the usual rule. In West v. Bechtel Corp., 96 Cal.App.4th 966, 117 Cal.Rptr.2d 647 (2002), the court reversed a $100,000 judgment based on age discrimination allegations. The Saudi Arabian government entity that Bechtel had a contract with vetoed the hiring of a 62-year old employee for a key position because of his age. Because there was no evidence that the decision-maker at Bechtel had a discriminatory motive, the employee had no case. Bechtel had made a neutral business decision based on the direction of the Saudi government entity.

Although there are limited circumstances where an employer' accession to customer preference may be a defense to a discrimination claim, those are exceptions to the firmly established rule to the contrary.

In addition, failure to take corrective action when informed of a customer's harassing behavior may expose the employer to hostile environment liability. In Salazar v. Diversified Paratransit, Inc.,117 Cal.App.4th 318, 11 Cal.Rptr.3d 630 (2004), the court ruled that a female driver had a viable hostile environment claim if her employer had failed to take action after she reported that a client had harassed her.

"Me Too" Evidence in Discrimination and Harassment Cases

"Me too" evidence is testimony from a plaintiff's co-workers that they were subjected to inappropriate conduct similar to that experienced by the plaintiff. Such evidence can provide powerful support for a plaintiff's case by taking it out of the realm of he said, she said. On the other hand, the use of such evidence can consume trial time on side issues and unduly prejudice the jury. The possibility that such evidence might be introduced at a trial should convince employers to put a stop to any inappropriate conduct even if the victim of the conduct does not complaint.

A recent decision from the Fifth District Court of Appeal in Fresno illustrates the use of "me too" evidence. Lorraine Pantoja complained that she was harassed and discriminated against on the basis of sex and race by the lawyer she worked for. She claimed that he used profanity constantly, referred to her as a b__, and used the term "Mexicans" in a derogatory way. Her employer denied her claims, testified that he never called anybody b__, and never used "Mexicans" in a derogatory way. He presented testimony from other employees who said that he used profanity but never directed it at individuals. The trial court refused to allow Pantoja have other employees testify that the employer frequently used b__ to refer to female employees, that he used "Mexicans" in a derogatory way, and directed profanity at individuals, because they would not be testifying to things that he said in front of Pantoja. The Court of Appeal reversed, ruling that the evidence should have been allowed because it tended to prove that the lawyer had a bias. See Pantoja v. Anton, Case No. F058414 (5th Dist. Ct. App. aug. 9, 2011).

There are two other notable California cases dealing with "me too" evidence:

1. Beyda v. City of Los Angeles, 76 Cal.Rptr.2d 547, 65 Cal.App.4th 511 (1998): The Court of Appeal affirmed a trial court ruling that barred "me too" evidence of sexual harassment not committed in the plaintiff's presence. It was improper to use such evidence to show that the defendant had a propensity to harass.
2. Johnson v. United Cerebral Palsy/Spastic Children's Foundation, 93 Cal. Rptr. 3d 198, 173 Cal. App. 4th 740 (2009): The Court of Appeal reversed a summary judgment for the employer in a pregnancy discrimination case, because declarations from five former employees who claimed they were discriminated against after they disclosed that they were pregnant created a triable issue of material fact.

Among the federal courts, the Supreme Court has yet to give a definitive ruling, but the Ninth Circuit has ruled that "me too" evidence is permissible.

1. Sprint/United Management Co. v. Mendelsohn, 128 S. Ct. 1140 (2008): The Supreme Court found that the Tenth Circuit had misinterpreted the district court's ruling about "me too" evidence and remanded for further analysis without ruling on admissibility. At the end of his majority opinion, Justice Thomas wrote: "The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry."
2. Obrey v. Johnson, 400 F. 3d 691 (9th Cir. 2005): Discriminatory treatment of other employees was admissible to help prove the plaintiff's pattern and practice case.
3. Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995): The district court should have allowed testimony by the plainitiff's co-workers that they were sexually harassed by the same individual whom the plaintiff claimed had harassed her. Their testimony tended to prove the individual's motive.

Liability For Bullying And Microinequities

Over the past few years, workplace bullying and microinequities not obviously based on protected characteristics have received much attention. Although the California Workers' Compensation Act preempts civil lawsuits for such claims unless a recognized exception to preemption applies, such conduct can pose liability risks. Such matters have been the subject of law firm commentary and an entire website.

The Workers Compensation Act preempts claims by an employee against the employer or a fellow employee for any injuries (including emotional injuries) that arise out of the employment relationship, even if based on conduct that is "manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability." See Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148 (1987).

The Act itself expressly exempts some injury claims from preemption, such as those resulting from a willful and unprovoked physical act of aggression of another employee (Labor Code section 3603(a)(1)) and from failure to install or removal of a guard on a power press (Labor Code section 4558). The courts have determined that claims based on other conduct may survive preemption if the conduct contravenes fundamental public policy or exceeds risks inherent in employment relationship. See Livitsanos v. Superior Court, 2 Cal.4th 744 (1992). The most important court-created exceptions are for claims under the anti-discrimination laws, and for wrongful termination in violation of public policy. See City of Moorpark v. Superior Court, 18 Cal.4th 1143 (1998) and Shoemaker v. Myers, 52 Cal.3d 1 (1990).

Although these principles would appear to severely limit liability, the reality is that the plethora of protected characteristics in the anti-discrimination laws and the multitude of public policies that can provide a basis for wrongful termination claims make almost any workplace unpleasantness a potential source of civil liability.

If an employee treats female employees unpleasantly, but is neutral to male employees, there may be a sexual harassment claim, even if the conduct is not expressly based on sex. See EEOC v. National Educ. Ass'n, Alaska, 422 F.3d 840 (9th Cir. 2005). An employee who appears equally abusive to all will create liability for an unlawful hostile environment by letting one epithet slip, even though a single epithet alone would not create liability. See Dee v. Vintage Petroleum, Inc., 106 Cal.App.4th 30 (2003) ("it is your Filipino understanding versus mine" created liability for harassment when combined with other abusive behavior).

To limit the risk of liability for hostile environment claims, the employer must intervene when an employee makes life unpleasant for other employees. Any such situation may turn into an unlawful harassment claim. Preventing unpleasant conduct will also make the workplace more comfortable for all, and promote employee productivity.

Turn Off/On/Down/Up Those Radios

One employee's favorite type of music is the bane of another's existence. The radio talk show host one employee finds brilliant, another employee finds ignorant and tasteless. Managers and supervisors are often called upon to referee disputes over music and radios in the workplace. What many may not know is that such disputes can lead to litigation.

Litigated Cases

In a recent case, a federal appellate court ruled that a female employee should be allowed to present a sexual harassment case to a jury that depended in part on being subjected to sexually explicit language on radio programs that her male colleagues listened to. Although she was often told that she could play her own music or change the station, when she did so, the other employees would soon change the radio back to the offensive program. Even though the language from the radio programs was not directed at the employee, it affected her work environment to the point that she was distracted and had to remove herself from her usual workspace. Reeves v. C.H. Robinson Worldwide, Inc., Case No. 07-10270 (11th Cir. 4/28/2008).

From time to time employees in union environments may challenge employers who try to limit radio use in the workplace. In one such dispute heard by a federal labor impasse panel, a unit of the Navy proposed that radios be banned at all times throughout the workplace. It claimed that radios could create shock hazards and employees might trip on electrical cords. Employees distracted by listening to radios might not hear important messages broadcast over the intercom and warning alarms. Finally, disputes between employees might erupt over programs selected and volume levels set. The union claimed that there had been a 20-year history of allowing radio before the ban, and that radio listening during personal time could help reduce stress.

The impasse panel found no evidence of safety problems, and ruled: "Employees will be permitted to listen to battery-operated radios with no or single earphone before starting work and during break and lunch periods. Radios are to be used in a courteous manner and played at a low volume." See Case No. 94 FSIP 029.

What You Should Do

The best way to avoid liability for radio disputes in the workplace is to ban use of radios or music players. In the absence of a collective bargaining issue like the one presented to the federal impasse panel, there is no legal impediment to implementing a total ban.

Those employers who permit radio or music player use in the workplace must adopt policies that prohibit listening to programs that offend fellow employees because of protected characteristics, such as race, sex, sexual orientation, religion, and so on.