Palmer v. GTE California Incorporated1/30/2002
not reverse the judgment on that ground. Rather, it considered the trial court's ruling for the purpose of determining whether the instructional error was prejudicial based on the weight of the evidence and other factors. (Mercer, at pp. 126-127; see Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580-581.) Moreover, the new trial order in Mercer was not void or made in excess of the court's jurisdiction (Mercer, at p. 118), so the court was not compelled to disregard it as we are compelled to disregard the void order in this case. The other authorities cited by GTE in support of its argument also are not on point and are unconvincing.
2. False Imprisonment
False imprisonment is defined as the nonconsensual, intentional confinement of a person without lawful privilege for an appreciable length of time, however short, by physical force, threat of force, physical barrier, or other means. (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) The intent element requires only an intent to confine, regardless of motive. (Id. at p. 716.)
An employer is privileged to restrain an individual if there is probable cause to believe that restraint is necessary to protect persons or property in the workplace. (Cf. Fermino v. Fedco, Inc., supra, 7 Cal.4th at p. 716; Collyer v. S. H. Kress & Co. (1936) 5 Cal.2d 175, 180-181.) The restraint must be reasonable in time and manner. (Fermino, at p. 716; Collyer, at pp. 180-181.) The reasonableness of the restraint is a question of fact. (Fermino, at p. 723, fn. 8.) The trial court here so instructed the jury.
Lee confined Palmer in the conference room against her will for approximately five minutes. Despite her vociferous objections and pounding on the door, neither Lee nor any other employee opened the door or allowed her to leave. The jury reasonably could conclude from the circumstances that Lee did not confine Palmer to protect the workplace and allow her to calm down, but confined her for an illegitimate purpose and in an unreasonable manner. We conclude that substantial evidence supports the verdict.
3. Harassment
FEHA prohibits harassment in the workplace motivated by, among other things, the perpetrator's sexual desire or the victim's gender. (Gov. Code, § 12940, subd. (j)(1), (4)(C).) Harassment based on gender is a form of gender discrimination and need not be motivated by sexual desire to be actionable. (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81; Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348, disapproved on another ground in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 816-817, 823.)
An employer is liable for harassment of an employee by an "agent" or supervisor, and is liable for harassment by an employee who is not an agent or supervisor only if the employer, or its agent or supervisor, knew or should have known of the conduct and failed to take immediate and appropriate corrective action. (Gov. Code, § 12940, subd. (j)(1); Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1328; Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 415.) An employer must take all reasonable steps to prevent harassment from occurring. (Gov. Code, § 12940, subd. (j)(1).)
Sexual harassment or gender harassment that does not involve a quid pro quo of sexual conduct in exchange for an employment benefit must be so severe and pervasive that it alters the conditions of employment and creates a hostile or abusive work environment, in light of all the circumstances. (Faragher v. Boca Raton (1998) 524 U.S. 775, 786-788; Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21-23; Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 60
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