There Are No “Safe Harbors” for Sexual Harassment and Discrimination: Ninth Circuit Reverses Summary Judgment in Davis v. California Department of Corrections and Rehabilitation

The Ninth Circuit Court of Appeals yesterday reversed a summary judgment in favor of the defendants and remanded for further consideration a sexual harassment and discrimination case against the Pelican Bay facility of the California Department of Corrections and Rehabilitation, as reported by the San Francisco Chronicle. The case, Davis v. California Department of Corrections and Rehabilitation, was brought by Brenda Davis, a social worker who had worked at the California state prison facility for seven years and had faced continuous discrimination and harassment from her first day on the job. According to her complaint, during her first day at the male correctional facility, her supervisor told her that women were not suited for her job. Her supervisor followed through with his belief, and over the next seven years subjected her to discriminatory behavior: criticizing her more than her male co-workers for the same behavior, questioning her judgment and decision-making in front of her colleagues and giving her more work than her male co-workers.
Davis also claims she was subjected to lewd and inappropriate behavior by the male inmates that her supervisors did nothing to address. One inmate masturbated in front of her multiple times. Another obtained her personal contact information and sent her eight graphic letters threatening to rape and kill her. According to her complaint, when Davis complained to her supervisors, they accused her of bringing on the abuse and told her to just deal with it. When she asked to be reassigned to other inmates, they still forced her to interview the two inmates privately multiple times. During one of those interviews the serial masturbator again masturbated in front of her, subjecting her to further humiliation and abuse.
When Davis finally exhausted her patience with her supervisors’ lack of support and protection and their own individual discriminatory behavior, she filed suit. When she applied for a supervisory role she was qualified for, her supervisor chose an allegedly less-qualified man for the job. Her supervisor did not call her references but claimed that the man had better references than her to explain his decision. When Davis followed up on her formal complaint, she was summarily fired just a few days later.
While the Ninth Circuit did not speak on the final merits of Davis’ claim, and only found that she had a right to have a jury decide on her claims, this case still stands as an important decision in California employment law. First, this case affirms that employers must ensure that they do not humiliate or abuse their employees only because of their sex, and if their employees complain and they retaliate against them, they will have to pay. Most importantly this case also highlights the issue of employer liability for third-party abuse, including abuse by customers. Even though Davis was working in a dangerous workplace with many unstable inmates, that does not mean she welcomed inappropriate sexual harassment and abuse. Her supervisors in failing to mitigate the situation when she complained to them about the inmates’ conduct made themselves liable for a sexual harassment claim.
Employers cannot shrug off third-party abuse as just part of the job. Once an employee makes clear the conduct is inappropriate, unwelcome and abusive, the employer has a responsibility to protect her employee. So, for example, a waiter at a restaurant has a right for his manager to protect him from patron sexual harassment and abuse and to take the steps necessary to make sure his rights are not violated. A bank manager likewise cannot turn a blind eye if customers are sexually harassing and abusing her tellers. Employers will be held liable for hostile work environments created by third parties, including customers, if they do not take any affirmative steps to address the situation.

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