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Lara v. Buckley Boradcasting Corporation of Monterey1/30/2002
ce on appeal. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160.) However, whether special verdicts are inconsistent is a question of law, at least insofar as they do not turn on an evaluation of the evidence. (Trujillo v. North County Transit Dist., supra, 63 Cal.App.4th at p. 285.)
Here the trial court ruled, without further explanation, that " he verdict was not inconsistent."
All four causes of action in Lara's complaint were based on the same general factual allegations, which correspond roughly to the evidence elicited at trial as set forth above.
The first cause of action asserted Buckley had "created and allowed to exist a sexually hostile environment" at KSEQ in violation of Government Code section 12940 of the FEHA. In particular, section 12940, subdivision (i) (now subdivision (k)) makes it an unlawful employment practice for an employer "to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring."
There are generally two types of sexual harassment claims recognized under the FEHA. The first is quid pro quo harassment, which occurs when a term of employment or employment itself is conditioned upon submission to unwelcome sexual advances. (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516.) The second type, and the one involved in this case, is a hostile work environment. It exists "`where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.' [Citation.]" (Id. at pp. 516-517.)
"`Sexual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of her statutory right to work in a place free of discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of well-being.' [Citation.]
"
"Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. [Citation.] The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. [Citation.]" (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608-610, fn. omitted.) The jury was instructed accordingly (BAJI No. 12.05 (1998 rev.)).
Government Code section 12940, subdivision (i) (failure to take all reasonable steps to prevent discrimination and harassment) creates a statutory tort with all the usual elements of a tort cause of action: the defendant's legal duty of care toward the plaintiff, breach of the duty (i.e., a negligent act or omission), legal causation, and damages to the plaintiff. (Trujillo v. North County Transit Dist., supra, 63 Cal.App.4th at pp. 286-287.) An employee who personally suffers no harassment or discrimination has no private right of action against an employer for a violation of subdivision (i). (Id. at pp. 288-289.)
Thus, a person asserting a hostile work environment claim under Government Code section 12940 must show: (1) a reasonable woman would find her co-workers' conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment, and (2) the employer, once apprised of the harassment, failed to take adequate remedial and disciplina
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