San Francisco Employment Law Firm Blog

The recently published case, DFEH v Lyddan Law Group, decided by the agency that reviewing DFEH decision, reaffirms that fact that an employee is unlikely to prevail on a racial discrimination/harassment claim when his/her boss makes racial jokes, off-color comments with regard to different races in an apparent desire to entertain himself and his colleagues and staff members. As inappropriate and as offensive racist jokes at workplace might be, especially when they originate from a manager who is an attorney-partner in a San Francisco law firm, like it was in this case, these jokes do not mean that the alleged harasser discriminates or that he creates an hostile work environment, especially if the relationship between him and the alleged victim is otherwise good and if the alleged victim does not complain about the harassment and does not make it known in any way that he/she is unhappy about the comments she hears.

Both, the Department of Fair Employment and Housing and the Court will require more than isolated racist jokes to find racial harassment or discrimination at workplace. Not all conduct at workplace that can be described as harassing creates liability under FEHA and the related anti-discrimination laws. As the Supreme Court has stated, the statutory protections against harassment do not create a "general civility code." Oncale v. Sundowner Offshore Services (1998) 523 U.S. 75, 81. There has to be a showing that the employer created or failed to remedy objectively intolerable working conditions for the victim. The requisite standard involves a shoring that the harasser's conduct would have interfered with a reasonable employee's work performance, seriously affecting the psychological well-being of a reasonable employee and that the alleged victim was actually offended. As the court stated in Aguilar v. Avis Rent A Car System, Inc., (1999) 21 Cal.4th 121, 130, "not every utterance of a racial slur in the workplace violates the FEHA or Title VII."

In this particular case, the DFEH also hinted in their decision that they also believe that at least one reason the employee brought a claim for racial discrimination against her boss was that she was denied her annual bonus and salary increase in a prior year.

Most employers, especially larger companies include detailed provisions on their anti-harassment at workplace policy. These policies generally serve several purposes. First, the employers are required to implement various harassment training and prevention procedures at workplace. Secondly, these policies are designed to provide an opportunity for employee to address and eliminate harassment at workplace. Lastly, and not less importantly, existence of those policies in the employee handbook is commonly used as a strong defense against sexual harassment, racial harassment and other hostile work environment claims, if the employee claims that he/she was harassed but failed to use the grievance procedures as provided by the employer's harassment policy.

However, the anti-harassment policies and the grievance procedures that the employee who believe to be harassed are encouraged to follow often have a fundamental flaw that entire defeats their use - many harassment manuals provide that the employee who feels that he/she is harassed should complain to his/her immediate supervisor or manager. The problem is that the immediate supervisor is often the source of harassment. If that's the case, that kind of policy will neither provide effective help to the employee, as it goes without saying that complaining to the source of harassment about his own harassment would be pointless.

Moreover, the employee's failure to use anti-harassment grievance procedures of the company in this case will likely not serve as a valid defense to the employer. As the United States Supreme Court stated in a leading case on harassment: "the employer's grievance procedure apparently required an employee to complain first to her supervisor. Since in this case the supervisor was the alleged perpetrator, it is not altogether surprising that the victim of the harassment failed to invoke the procedure and report her grievance to him. The employer's argument that the harassed employee's failure should insulate it from liability might have been substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward..." Meritor Savings Bank, FSB v. Vinson.

Alameda county is one of the most ethnically diverse areas, which brings lots diversity into workplace. With all wonderful benefits of having a variety of people from different backgrounds and cultures at workplace, this sometimes inevitably leads to animosity and conflicts between different racial groups and claims of race discrimination, racial harassment, and wrongful termination claims based on racial conflicts and claims of retaliation.

Employers who employ two or more large groups of workers from different racial backgrounds are likely to find themselves in situations where members of two or more racial minority groups of employees complain that the members of the other ethnic group engage in unlawful racial discrimination and harassment. For instance, it is not uncommon for the County of Alameda government agencies in Oakland, Alameda and surrounding cities to face these kinds of issues. An employer may find itself in a predicament in such circumstances. On one hand, the employer has an affirmative obligation to conduct a prompt and thorough investigation of harassment and discrimination complaints as FEHA (Fair Employment and Housing Act Requires), and take all appropriate measure to remedy harassment/discrimination. On the other hand, if the employer takes action against the alleged harasser, such as suspension, administrative leave, or termination, the company/agency runs the risk of being sued for racial discrimination by the disciplined employee.

This is one of the major reasons why it is so important for an employer to make sure that the conducted investigation is as thorough, unbiased and well documented as possible, as it will serve as a strong defense against discrimination and harassment allegations, showing that the employer too all reasonable steps to prevent/remedy discrimination and harassment.