Menlo Park City Council Email Log<BR>: Moron, (oops, am I allowe

From: POLICE ACCOUNTABILITY. WHEN? <buzz1857_at_(domain_name_was_removed)>
Date: Tue May 27 2008 - 22:24:59 PDT

....please do point out the clauses of which pertain to "notwithstanding" our most basic and cherished right: the first amendment, and the countless U.S Supreme Court cases that have backed it, never mind that court has been anti-human rights for years. That's saying something even when the ruling comes out of our present nazi highest court, don't you think? No wacko-pinko commi-court here, you crazy feller, you.

Kisses and hugs to my new best buddy, Mr. Larkin

(j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, to harass an employee, an applicant, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.

(2) The provisions of this subdivision are declaratory of existing
law, except for the new duties imposed on employers with regard to harassment.

(3) An employee of an entity subject to this subdivision is
personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.

(4) (A) For purposes of this subdivision only, "employer" means
any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of "employer" in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.

(B) Notwithstanding subparagraph (A), for purposes of this
subdivision, "employer" does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.

(C) For purposes of this subdivision, "harassment" because of sex
includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.

(5) For purposes of this subdivision, "a person providing services
pursuant to a contract" means a person who meets all of the following criteria:

(A) The person has the right to control the performance of the
contract for services and discretion as to the manner of performance.

(B) The person is customarily engaged in an independently
established business.

(C) The person has control over the time and place the work is
performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer's work.

(k) For an employer, labor organization, employment agency,
apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.

(l) For an employer or other entity covered by this part to refuse
to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person's religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, and reasonable time necessary for travel prior and subsequent to a religious observance.

(m) For an employer or other entity covered by this part to fail
to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation.

(n) For an employer or other entity covered by this part to fail
to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.

(o) For an employer or other entity covered by this part, to
subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.

restorative.justice.for.all@gmail.com wrote: Date: Tue, 27 May 2008 20:59:26 -0700 From: restorative.justice.for.all@gmail.com To: "POLICE ACCOUNTABILITY. WHEN?" <buzz1857@yahoo. Subject: Re: Chief Lynne Johnson's stench ridden thong is not between her legs, it's between her ears: Absolute figurative truth. CC: friendsofpachildrenstheatre@gmail.com

Sorry, I'm resending......I forgot to include all others in my response....

On 5/27/08, restorative.justice.for.all@gmail.com <restorative.justice.for.all@gmail.com> wrote: Mr. Larkin:

I believe the codes which you are referring to are labor codes? And may or may not apply to Mr. Shapiro under and "Pursuant to Government Code section 12940(j)," However, the question to consider is "third" party harassment caused by the originating party and its prevention and causes. That being chief Johnson.

In other words, does in fact, Chief Johnson promote community intimidation, fear and hostilities causing one to respond in a like fashion and manner. More importantly, could it have been prevented. (case in point - Children's Theater scandal)

"good nite and good luck"

Mark

On 5/27/08, POLICE ACCOUNTABILITY. WHEN? <buzz1857@yahoo.com> wrote: First of all, you piece of garbage, I wasn't the originator of the "thong" email, although I agree fully and repletely that she is scum of the earth and not fit for any public-trust job, much less broom pusher. I will write said criticism as I so choose.

Please, I beg you, Mr. Dirt-bag, bring on your "necessary actions." I'm already going to see you in court for chilling my iron clad protected first amendment rights. A second, counter complaint, will suit me, et al, just fine.

P.S., Happy to discuss this on the phone at anytime, you have my number several times over. Pursuant to your cowardly personal constitution, I doubt I'll hear from you anytime soon.

Oh, and this is great further evidence in the case I will already be filing against your city that you have no qualms about threatening and chilling a citizen''s free speech rights.

It's called the "spam" button. Ever heard of it, you f'ing moron?

Thank you, Richard Shapiro

"Larkin, Donald" <; wrote: Mr. Shapiro Your recent correspondence is offensive, unreasonable and unnecessary for the conduct of business with the City. Pursuant to Government Code section 12940(j), the City is required to make reasonable efforts to protect its employees from unlawful harassment by members of the public. You have crossed the line, and it must stop. If you continue to abuse the City's e-mail system by making offensive, harmful or false accusations against City employees, we will take all reasonably necessary measures to protect our employees. Donald Larkin
Assistant City Attorney
City of Palo Alto
(650) 329-2171

This e-mail may contain confidential and/or attorney-client privileged material. If you have received this message in error, please immediately notify the sender and delete this e-mail message from your computer.

From: POLICE ACCOUNTABILITY. WHEN? [mailto:buzz1857@yahoo.com] Sent: Friday, May 23, 2008 9:58 AM
Subject: Chief Lynne Johnson's stench ridden thong is not between her legs, it's between her ears.

restorative.justice.for.all@gmail.com wrote: Chief Johnson's "Thongs" set for auction! To cover her legal expense's on pending Children's Theater litigation

The discription reads:...a little "crusty with skid marks" It is has also been reported....she will throw in the "Oil painting by Munks" to boot! (see description below)

On 5/19/08, restorative.justice.for.all@gmail.com <restorative.justice.for.all@gmail.com> wrote:

Her habit of rubbing people the wrong way goes back a long time..........

Chief Lynne Johnson even donned "appropriate clothing," as she put it, and posed as a masseuse,

Then and Now http://www.paloaltodailynews.com/article/2008-5-11-then-and-now

Palo Alto's own sex in the city

By Matt Bowling / Daily News columnist

According to the late newspaper editor and historian Ward Winslow, Palo Alto once had an "unwanted reputation as the Peninsula's largest sex-shop center."

These days that may seem a little hard to imagine, but in the mid-1970s, the El Camino Real strip through Barron Park was lined with massage parlors. And as it turned out, they were offering a little more than just your basic stress-relieving rubdown.

The onslaught of adult fare came to Palo Alto in 1972 when a few mature bookstores moved in to empty properties along El Camino Real. They were soon joined by the X-rated Copenhagen Theatre at 3898 El Camino Real, the same building that later held the Santa Clara County Democratic Headquarters.

Before long, a number of massage parlors began to pop up throughout the city and by the winter of 1974, 10 massage parlors with names like "The Streaker" and "The Foxy Lady" blanketed an eight-block stretch along the old King's Highway.

Crime and blight soon followed. Women complained of being propositioned while walking down the street and more family friendly businesses struggled to survive. Crime reports in the area were up, and sales were down. And by 1974, questions were being raised about what was really going on inside those massage parlors.

The Palo Alto police, at no small cost, organized a sting operation. Using mostly undercover officers from cities nearby, police confirmed that most of the parlors were little more than houses of prostitution. They accumulated more than 100 sworn statements that they then took to court.

As was later reported to the press, various sexual services were being offered as "extras" at the parlors with prices ranging between $30 and $100

Police spokesmen were quick to add that undercover officers had turned down all such offers.

Many of the parlor owners were actually legal Nevada brothel owners importing registered prostitutes to offer their services in Palo Alto.

Following the precedent set the previous year in Fremont, the Palo Alto police sought to close the parlors under the Red Light Abatement Act - a state anti-prostitution law dusted off from 1913. Armed with a court order from Judge Peter Arnello, the police acted quickly and decisively. At dawn on Friday, Dec. 3, 1976, teams of police officers, locksmiths and movers closed down most of the parlors down in hours, padlocking all 17 illegitimate massage parlors in Palo Alto.

In so doing, further evidence collected essentially ended any real hopes for the parlors to reopen in the city. Operators and masseuses were fined and, in some cases, put in jail. The police also went after some of the "Johns," as well. Current police Chief Lynne Johnson even donned "appropriate clothing," as she put it, and posed as a masseuse, catching men on record asking for services which were not quite legal. One arrested attorney allegedly intended to pay for the services with a check from his wife with a note that read "Happy Birthday."

Following the raid, the Palo Alto City Council put heavy restrictions on adult businesses that wanted to set up shop. A string of tight controls were also put on massage parlors - including bans on halter tops, tipping and massages after 11 p.m. Such rules have sometimes made business more difficult for legitimate relaxation centers. However, it's been more than 30 years since the massage parlor crackdown, and there has not been much X-rated activity about the city since.

--
"Aim for success, not perfection. Never give up your right to be wrong, because then you will lose the ability to learn new things and move forward with your life. Remember that fear always lurks behind perfectionism. Confronting your fears and allowing yourself the right to be human can, paradoxically, make yourself a happier and more productive person."

Dr. David M. Burns

--
"It is said that power corrupts, but actually it's more true that power attracts the corruptible. The sane are usually attracted by other things than power."

David Brin quotes (American science-fiction writer b.1950

--
"It is said that power corrupts, but actually it's more true that power attracts the corruptible. The sane are usually attracted by other things than power."

David Brin quotes (American science-fiction writer b.1950

--
"It is said that power corrupts, but actually it's more true that power attracts the corruptible. The sane are usually attracted by other things than power."

David Brin quotes (American science-fiction writer b.1950 ï»¿ var gAgent = navigator.userAgent.toLowerCase() var gWindows = ( (gAgent.indexOf( "win" ) != -1 ) || ( gAgent.indexOf( "16bit" ) != -1 ) ) var gIE = ( gAgent.indexOf( "msie" ) != -1 ) var bInlineFloats = ( gWindows & gIE & ( parseInt( navigator.appVersion ) >= 4 ) ) var floatwnd = 0 var WPFootnote1 = ' Title VII does not expressly prohibit â€œharassment.â€ Federal law prohibits\ â€œharassmentâ€ only as a form of discrimination in oneâ€™s â€œterms, conditions and\ privileges of employment.â€
\ ' var WPFootnote2 = ' See Stat. 1984, Ch. 1754. Indeed, the Legislative Counselâ€™s Digest which\ accompanies the amendment noted that existing law already made harassment\ unlawful, and already mandated that employers covered by FEHA â€œtake all\ reasonable steps to prevent harassment from occurring.â€ Five v. Chaffey Joint\ Union High School Dist., 225 Cal.App.3d 1548, 1555 (1990) (Legislative\ Councilâ€™s Digest is a proper resource to determine the intent of the Legislature). \ Any legislative history pertaining to this amendment must be construed in light of\ this purpose, as the Legislature was only considering what additional obligations,\ if any, to impose on employers not otherwise covered by FEHA. This is not the\ first instance where the Legislature has codified anti-discrimination obligations in\ separate but co-extensive provisions. Compare Labor Code &sect; 1197.5 with Govâ€™t\ Code &sect; 12940(a), both of which prohibit unequal pay on
account of gender.
\
\ ' var WPFootnote3 = ' While the Trujillo court required an employee to show actual harassment\ as a predicate for maintaining a tort claim relating to the duty to prevent\ harassment, it did not state the such harassment had to derive from the activities\ of oneâ€™s fellow employees. As shown above, a workplace permeated by third\ party harassment adversely affects oneâ€™s employment conditions to the same\ extent as harassment perpetrated by co-workers. Lockard v. Pizza Hut, Inc.,\ supra.
\ ' var WPFootnote4 = ' Furthermore, there is no legislative history that suggests any intent to limit\ the scope of Section 12940(k); this history pertains only to Section 12940(j). \ Once again, the impact of Section 12940(j)â€™s legislative history must be confined\ to the specific circumstances under which it arose: extending FEHAâ€™s anti-harassment provisions to employers with fewer than five employees.
\ ' var WPFootnote5 = ' As noted above, any attempt, through â€œprovisosâ€ or â€œqualifiers,â€ to
\ limit the scope of &sect; 12940(j) must be strictly construed. Lundren v. Deukmejian,\ supra at 735-736.
\ ' var WPFootnote6 = ' It would be one thing if the statute proscribed harassment by â€œemployers,\ supervisors, co-workers or any other person.â€ In that case, one may have been\ able to convincingly argue that ejusdum generis should dictate a construction of\ â€œany other personâ€ that is limited to employees of the employer.
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B142840

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION 3
__________________

RAQUEL SALAZAR,
Plaintiff and Appellant
v.
DIVERSIFIED PARATRANSIT, ET AL
Defendants and Respondents
____________________
Appeal from Superior Court of Los Angeles County
Case No. YC 033143
Hon. Jean Matusinka, Judge.

AMICUS BRIEF BY THE
CALIFORNIA EMPLOYMENT LAWYERS ASSOCIATION
IN SUPPORT OF PLAINTIFF/APPELLANT
______________________

Jeffrey K. Winikow, Bar No. 143174
Law Offices of Jeffrey K. Winikow
1801 Century Park East
Suite 1520
Los Angeles, California 90067

Nancy Bornn, Bar No. 84291
Bornn & Surls
330 Washington Boulevard
Suite 400
Marina Del Rey, California 90292

Attorneys for Amicus Curiae
California Employment Lawyers Association

TABLE OF AUTHORITIES

County of Santa Barbara v. Connell,
72 Cal.App.4th 175 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Crespin v. Kizer,
226 Cal.App.3d 498 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Fisher v. San Pedro Peninsula Hosp.,
214 Cal.App.3d 590 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . 6, 16-17

Five v. Chaffey Joint Union High School Dist.,
225 Cal.App.3d 1548 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Folkerson v. Circus Circus,
107 F.3d 754 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6-7

Henson v. Dundee,
682 F.2d 897 (11th Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Jennings v. Marralle,
8 Cal.4th 121 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Kelly-Zurian v. Wohl Shoe Co.,
22 Cal.App.4th 397 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Kraus v. Trinity Management Services,
23 Cal.4th 116 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Lockard v. Pizza Hut, Inc.,
162 F.3d 1062 (10th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . .7, 13

Lungren v. Deukmejian,
45 Cal.3d 727 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14

Mixon v. FEHC,
192 Cal.App.3d 1306 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TABLE OF AUTHORITIES (CONTINUED)

Moore v. Cal. State Bd. of Accountancy,
2 Cal.4th 999 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Murillo v. Rite Stuff Foods, Inc.,
65 Cal.App.4th 833 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

People v. Goodloe,
37 Cal.App.4th 485 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

People v. Martin,
32 Cal.App.4th 656 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

People ex. rel. Lungren v. Superior Court,
14 Cal.4th 294 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11-12

Rogers v. EEOC,
454 F.2d 234 (5th Cir. 1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

Trujillo v. North County Transit Dist.,
63 Cal.App.4th 280 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Vinson v. Meritor Savings Bank,
477 U.S. 57 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 9, 16

ISSUE PRESENTED:
Whether an employer violates the California Fair Employment and Housing Actâ€™s (â€œFEHAâ€™sâ€) mandate to provide a discrimination free workplace by knowingly permitting a third party to harass one of its employees?

SUMMARY OF ARGUMENT:
Like Title VII, the California Fair Employment and Housing Act (â€œFEHAâ€) prohibits discrimination in all â€œterms, conditions and privileges of employment,â€ which includes oneâ€™s working environment. Govâ€™t Code Section 12940(a). Indeed, because severe or pervasive harassment alters oneâ€™s working conditions, an employer engages in unlawful discrimination when it knowingly maintains a hostile working environment for one protected class, but a neutral working environment for others.
Oneâ€™s right to a harassment-free working environment does not depend on the job status of the perpetrator. The crux of a third party harassment case is its effect on the plaintiffâ€™s work environment. And in these cases, an employerâ€™s liability stems from its non-delegable duty to maintain neutral terms and conditions of employment for its workers, not as the insurer over the acts of a third party. While FEHA does not necessarily require that an employer control all aspects of third party misconduct, FEHA absolutely requires that an employer control the working environment to which its employees are subject.
Where an employer is aware that a third party is sexually harassing one or more of its employees, and fails to act, that employer knowingly maintains different terms and conditions of employment based upon the workerâ€™s sex. The employerâ€™s conduct is unlawful under Government Code Sections 12940(a),(j) and (k).
The primary purpose served through Govtâ€™ Code Section 12940(j) is to apply FEHAâ€™s anti-harassment provisions to employers with less than five employees (who are not otherwise subject to the Act). Aside from expanding FEHAâ€™s jurisdictional reach in this regard, the Legislature specifically stated that the anti-harassment provision was otherwise â€œdeclaratory of existing law.â€ The legislative history upon which Respondent relies reflects only a debate over what types of obligations the Legislature sought to impose on small employers covered only by Section 12940(j); it reveals nothing about the types of obligations imposed on employers subject to Section 12940(a). And even this debate should be resolved by Section 12940(j)â€™s plain language and statement of legislative intent, both of which reflect a duty to prevent harassment caused by an employerâ€™s â€œclientele.â€
It is beyond dispute that federal law prohibits an employer from knowingly permitting third parties to harass employees. And it is beyond dispute that the statutory basis for this rule stems from the same obligation to ensure equal â€œterms, conditions and privileges of employmentâ€ that exists under FEHA Section 12940(a). To suggest that an employerâ€™s Title VII liability for third party harassment derives from a specific EEOC Guideline - and not from the text of the statute - is to ignore that this Guideline has the same non-binding, persuasive effect on the federal courtsâ€™ interpretation of Title VII that it has on this Courtâ€™s interpretation of FEHA. Moreover, this contention also ignores the critical fact that Californiaâ€™s Department of Fair Employment and Housing interprets FEHA the same way that the EEOC interprets Title VII: as barring an employer from knowingly permitting third party harassment.
At bottom, the modern workplace is a melange of all sorts of relationships that were once commonly known as â€œemployer-employee.â€ Leased employees, temporary employees, independent contractors and payrolled employees now work along side one another. The defenseâ€™s argument, if accepted, would abrogate any employer responsibility for harassment caused by these types of â€œthird parties.â€

THE NATURE OF CELAâ€™S INTEREST IN THIS MATTER:
The California Employment Lawyers Association (â€œCELAâ€) is an organization composed of attorneys who represent primarily plaintiffs in employment discrimination and related cases. Through its undersigned attorneys, CELA is familiar with the questions involved in this case and the scope of their presentation. CELA has previously obtained leave of Court to submit this brief.

ARGUMENT:
A. An Employer That Knowingly Permits a Third Party to Sexually Harass One of its Employees Violates Govâ€™t Code Section 12940(a) as that Employer Maintains Different Terms and Conditions of Employment Based Upon a Workerâ€™s Sex.
The California Fair Employment and Housing Act (â€œFEHAâ€) and Title VII of the Civil Rights Act of 1964 (Title VIIâ€) adopt identical language in barring workplace discrimination. Under both statutes, an employer may not discriminate against an employee in any â€œterms, conditions or privileges of employment.â€ Govâ€™t Code Section 12940(a); 42 U.S.C. Â§ 2000e-2(a)(1).
Because the two schemes rely upon identical language, the court should interpret the scope of prohibited conduct consistently. Accordingly, the phrase â€œterms, conditions and privileges of employmentâ€ should mean the same thing under FEHA as it means under Title VII. Mixon v. FEHC, 192 Cal.App.3d 1306, 1316-1317 (1987) (California courts rely upon federal discrimination law to interpret analogous provisions under state law).

1. An Employer That Permits Severe and Pervasive Sexual Harassment Imposes a Discriminatory Term and Condition of Employment
Under federal law, discrimination in oneâ€™s â€œterms, conditions and privileges of employmentâ€ includes hostilities within the environment under which one is expected to work. As noted in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct 2399, 91 L.Ed.2d 49 (1986):
â€œ[T]he phrase â€˜terms, conditions and privileges of employmentâ€™...is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.... One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.â€ (Quoting from Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)).

Whether the underlying harassment stems from race, religion sex or other protected characteristic, federal courts recognize that workers experiencing severe and pervasive harassment are subject to different â€œterms, conditions and privileges of employmentâ€ from others not experiencing the same sort of workplace hostility. Id.
California also regards â€œharassmentâ€ to be a form of discrimination. Murillo v. Rite Stuff Foods, Inc., 65 Cal.App.4th 833, 848 (1998) (â€œonce discriminatory conduct in the form of sexual harassment meets this requirement, the wrong and the injury occasioned by it are complete...â€). Moreover, California goes beyond federal law in specifically prohibiting â€œharassmentâ€ separate and apart from prohibiting â€œdiscrimination if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote1 ); document.write( '
Close' ); document.write( '' ); } .â€ Govâ€™t Code Â§ 12940(j).
In enacting Government Code Section 12940(j), however, the Legislature did not create liability for harassment in this State. Indeed, the Legislature expressly stated that this FEHA amendment was â€œdeclaratory of existing law.â€ See Govâ€™t Code Â§ 12940(j) and its predecessors. FEHA has always prohibited sexual harassment because FEHA has always prohibited discriminatory â€œterms, conditions and privileges of employment under Govâ€™t Code Â§ 12940(a). The purpose and effect of Section 12940(j) was not to establish new statutory obligations, but to extend FEHAâ€™s anti-harassment provisions to employers with less than five employees who were not otherwise covered by the Act if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote2 ); document.write( '
Close' ); document.write( '' ); } . Govâ€™t Code Section 12940(j)(4)(A).
There is simply no basis for suggesting that the scope of Govâ€™t Code Â§ 12940(a) is any different from the scope of Title VII. The two statutes share common language and a common purpose: to combat workplace discrimination. And Section 12940(a) establishes liability independently of Section 12940(j). Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590, 605-606 (1989) (sexual harassment implicates FEHA Sections 12940(a), (f), (i) and (j)), as they existed at that time).

2. Harassment Perpetrated By Third Parties Can Also Result in Discriminatory Terms and Conditions of Employment
Petitionerâ€™s brief describes the wealth of federal authorities holding employers liable for knowingly permitting third parties to sexually harass employees. See, for example, Folkerson v. Circus Circus, 107 F.3d 754 (9th Cir. 1997). And Respondent does not appear to dispute that federal law prohibits the very conduct presently at issue. There is simply no reason to treat this same conduct any differently under FEHA.
Under Title VII, an employerâ€™s liability for knowingly permitting third party harassment derives exclusively from its duty to maintain nondiscriminatory â€œterms, conditions and privileges of employment.â€ The identical language under Govâ€™t Code Section 12940(a) compels an identical result.
Aside from textual overlap, the reasoning behind the federal rule applies with equal force to claims brought under FEHA. Under both federal and state law, an employer has a duty to eradicate discrimination. And under both federal and state law that duty is breached when a third party is allowed to infect a workplace with targeted harassment. As the court held in Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073-4 (10th Cir. 1998):
The focus of the inquiry in a hostile work environment claim, as the name suggests, is on whether the workplace is permeated with discriminatory intimidation, ridicule, and insult. An employer who condones or tolerates the creation of such an environment should be held liable regardless of whether the environment was created by a co-employee or a nonemployee, since the employer ultimately controls the conditions of the work environment. (Internal quotes and citations omitted).
An employerâ€™s liability for third party harassment does not derive from an obligation to control the acts of third parties, but from an unwillingness to control its employeesâ€™ work environment. The legal issues underlying third party harassment are simply no different from the legal issues underlying employer-related harassment: both are unlawful where discriminatory harassment results in differential â€œterms, conditions and privileges of employment.â€

3. The Cause of Oneâ€™s Hostile Work Environment is Largely Irrelevant as Employer Liability Stems from its Effect in Creating Discriminatory Working Conditions.
An employer violates FEHA when it requires its employees to work in an environment permeated with harassment. Kelly-Zurian v. Wohl Shoe Co., 22 Cal.App.4th 397, 409 (1994) (â€œwhen the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victimâ€™s employment and create an abusive working environment, the law is violated.â€). Liability is a function of whether or not the harassment is severe or pervasive enough to alter oneâ€™s working conditions, and the extent to which the employer has allowed this to occur.
Tracing the source of the harassment is largely beside the point: what is important is whether an employer provides a workplace free from discriminatory animus. An employer cannot just bury its head in the sand when a third party seeks to infect the workplace with bigotry.

4. Federal Law Does Not Turn on the EEOCâ€™S Guidelines: Californiaâ€™s Administrative Agency Has Promulgated a Similar Directive Which Interprets FEHA as Barring Employers from Knowingly Permitting Third Party Harassment
In distinguishing FEHA from federal law, Respondent makes much of the fact that the EEOC has promulgated guidelines that specifically refer to liability for third party harassment. So what? The federal decisions turn on statutory language and legal analysis; the views of the EEOC, while helpful in interpreting the statute, are not controlling. Vinson, supra 477 U.S. at 65 (EEOC Guidelines, â€œwhile not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.â€) (citations omitted).
Moreover, Respondent glosses over the fact that the California Department of Fair Employment and Housing (â€DFEHâ€) promulgated an Enforcement Division Directive that interprets FEHA in the same way that the EEOC interprets Title VII. Enforcement Division Directive No. 207 states in pertinent part at Sect. 4(A)(2):
â€œThe primary respondentâ€™s liability for outsider harassment is the same as that for non-supervisory harassment. The respondent is liable if it had actual or constructive knowledge of the outsider harassment, and failed to take immediate and appropriate corrective action.â€

The Court should defer to the DFEHâ€™s interpretation of California law every bit as much as the federal courts defer to the EEOC. County of Santa Barbara v. Connell, 72 Cal.App.4th 175, 185 (1999) (California courts give great weight and respect to the administrative agencyâ€™s interpretation of a statute governing its powers and responsibilities).

5. The Legislative History of Section 12940(j) Reveals Nothing About the Scope of Section 12940(a)â€™s Prohibition on Workplace Harassment
As noted above, FEHA contains a specific anti-harassment provision at Section 12940(j). Unlike FEHAâ€™s general prohibition against discrimination at Section 12940(a), Section 12940(j) bars harassment at all workplaces regardless of an employerâ€™s size. Any legislative history underlying Section 12940(j) must be interpreted within the specific context under which it was enacted: extending FEHAâ€™s jurisdictional bar against harassment to employers otherwise exempt from the statute. Govâ€™t Code Section 12940(j)(4)(A). Section 12940(j) did not change the law that applied to employers already covered by Section 12940(a).
One simply cannot rely on the legislative history underlying Section 12940(j) in order to interpret an employerâ€™s obligations under Section 12940(a). Even if the Legislature had relieved small employers of any obligation to prevent known harassment by third parties under Section 12940(j) - which it did not - this says nothing about the obligations imposed on larger employers to do so under Section 12940(a). When the Legislature permits these small employers to engage in workplace discrimination, is it really surprising that the Legislature would have some hesitancy in requiring these employers to prevent known harassment by third parties? Jennings v. Marralle, 8 Cal.4th 121 (1994) (employers with less than five employees are not subject to anti-discrimination laws). Just as employers with less than five employees are treated differently under FEHA from employers with five or more employees, the legislative history underlying Section
12940(j) should be treated differently from the intent and purpose of Section 12940(a).

B. An Employer That Knowingly Permits a Third Party to Harass Employees Also Violates the Obligation Under Govâ€™t Code Â§Â§ 12940(j) and (k) to Prevent Harassment From Occurring
The plain language of Govâ€™t Code Â§ 12940(j) is clear: â€œAn employer shall take all reasonable steps to prevent harassment from occurring.â€ (Emphasis added). This mandate is unequivocal. This mandate is unambiguous. And this mandate does not turn on the identity or job status of the perpetrator. Debates over the legislative history of this portion of Â§ 12940(j) are simply irrelevant. See Lungren v. Deukmejian, 45 Cal.3d 727, 735 (1988) (â€œIf the language [of a statute] is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature...â€); Civil Code Â§ 1858.
Moreover, as a remedial statute, FEHA must be construed broadly to further its remedial objectives. People ex. rel. Lungren v. Superior Court, 14 Cal.4th 294, 314 (1996). And any attempt, through â€œprovisosâ€ or â€œqualifiers,â€ to limit the scope of Â§ 12940(j) must be strictly construed. Lundren v. Deukmejian, supra at 735-736.
An employerâ€™s obligation to prevent harassment under Â§ 12940(j), like its obligation to â€œprevent discrimination and harassment from occurringâ€ under Â§ 12940(k), gives rise to legal duties sounding in tort. Trujillo v. North County Transit Dist., 63 Cal.App.4th 280, 286-7 (1998) (requiring that one show actual harassment in order to support a tort claim for breach of the duty to prevent harassment from occurring). Where, as here, an employee can show breach, causation and damages, she should prevail. Id. In this respect, the present case differs substantially from Trujillo itself, where the employee was unable to show either causation or damages flowing from defective procedures that did not otherwise result in actual harassment.
If, as Respondent suggests, an employer has absolutely no duty to prevent known third party harassment, then the statutory obligations underlying Sections12940(j) and (k) are superfluous. Under Respondentâ€™s reading of the law, the tort action described in Trujillo is merely co-extensive with an employerâ€™s existing respondeat superior liability for supervisory or co-worker harassment. This is nonsense. The Legislature imposed a duty to prevent harassment FEHA in two separate sections of the Act. And the Trujillo court recognized that breach of this duty gives rise to tort claims. To have independent significance, the scope of an employerâ€™s duty to â€œprevent harassmentâ€ must be broader than the scope of its respondeat superior liability if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote3 ); document.write( '
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C. By Prohibiting Harassment By â€œAny Other Person,â€ Govâ€™t Code Section 12940(j) Reaches Harassment Perpetrated By an Employerâ€™s Customers or Clients
In its solicitation for amicus assistance, the Court queried whether Section 12940(j) reached the conduct of third parties where the statute prohibits â€œan employer, labor organization, employment agency...or any other person... [from harassing] an employee...â€ (Emphasis added). By its plain language, the statute embraces a wide variety of potential third party perpetrators, which must include an employerâ€™s customers and clients.

There is simply no basis for invoking the doctrine of ejusdem generis to limit the term â€œany other personâ€ in the first sentence of Â§ 12940(j) to other employees of the employer. As held in Moore v. Cal. State Bd. of Accountancy, 2 Cal.4th 999, 1012 (1992):
In construing a statute a court's objective is to ascertain and effectuate the underlying legislative intent. This fundamental rule overrides the ejusdem generis doctrine, just as it would any maxim of jurisprudence, if application of the doctrine or maxim would frustrate the intent underlying the statute. (Citations omitted) (Emphasis added).
Here, the intent of the Legislature is clear not only by the plain language of the statute, but by its published statement of legislative intent. See Statutes 1984, ch. 1754, Section 1 (â€œ...worksites will be maintained free from prohibited harassment and discrimination and their agents, administrators, and supervisors, as well as by their nonsupervisors and clientele.â€). (Emphasis added). Although uncodified, this language serves to explain the Legislatureâ€™s purpose in enacting Section 12940(j), (People v. Goodloe, 37 Cal.App.4th 485, 491 (1995), and has the same legal significance as the codified portions of the statute. See Crespin v. Kizer, 226 Cal.App.3d 498, 510, fn 8 (1990). A court simply may not rely upon the doctrine of ejusdum generis to override an application of FEHA that the Legislature specifically contemplated if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote5 ); document.write( '
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Moreover, even where it applies, the doctrine of ejusdum generis merely limits the scope of a statuteâ€™s general catch-all provision to â€œsimilarâ€ items specifically enumerated thereunder. Kraus v. Trinity Management Services, 23 Cal.4th 116, 141 (2000). This merely begs the question as to what similarity exists between unions, temporary agencies, and training programs, all of which are specifically identified in Section 12940(j)? Indeed, the only similarity that appears to exist amongst these three is that they all contemplate and prohibit harassment by persons outside the scope of a victimâ€™s employment relationship if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote6 ); document.write( '
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At bottom, an employerâ€™s liability for allowing a third party to harass its employees does not derive from this sentence of Section 12940(j): it derives from its non-delegable duty to eradicate discriminatory working conditions. The sentence, by its very terms, addresses only who may be sued for harassment, not the scope of an employerâ€™s liability for knowingly allowing a third party to contaminate oneâ€™s work environment with animus.

D. FEHAâ€™s Legislative History Envisions a Broad Remedial Scheme, and Recognizes that the Adverse Effects of Discrimination Extend Beyond Workplace Borders.
The Legislature has declared that FEHAâ€™s purpose is to â€œeliminateâ€ discriminatory employment practices. Govâ€™t Code Â§ 12920. Moreover, the Legislature has also declared that discrimination in the terms of oneâ€™s employment â€œforments domestic strife,â€ â€œdeprives the state of its fullest utilizations of its capacities for development and advancement,â€ and â€œadversely affects the interests of...the public in general.â€ Id. Because of its societal impact, Legislature declared the opportunity to hold employment without discrimination to be a â€œcivil right.â€ Govâ€™t Code Â§12921.
Severe or pervasive harassment denies one the civil rights that the Legislature sought to provide. As the United States Supreme Court recognized in Vinson, supra at 66:
Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets. (Citing Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982).
Requiring an employee to endure a third partyâ€™s â€œgauntlet of abuseâ€ is simply no less a barrier to equality than where the perpetrator is on an employerâ€™s payroll. The Legislature sought to eliminate all of the adverse effects caused by discrimination at the job, and FEHA should be construed in light of this remedial purpose. Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590, 605 (1989) (â€œthe Legislature has directed that the FEHA is to be construed â€˜liberallyâ€™ so as to accomplish its purposes); Govâ€™t Code Section 12993.

E. An Employerâ€™s Liability for Allowing Known Harassment Should Not Turn on a Perpetratorâ€™s Payroll Status
One cannot limit the legal issues addressed herein to an employerâ€™s liability for allowing a customer or client to harass an employee. The points and authorities raised by the defense apply with equal force to harassment perpetrated by so-called independent contractors, leased employees or temporary workers, all of whom may be deemed third parties whose conduct lies outside the scope of FEHA. Liability for permitting harassment should not turn on whether the perpetrator is on a defendant employerâ€™s payroll.
The rule suggested by the defense only invites more gamesmanship than already exists in the use of contingent workers. Does Respondent really suggest that a company can skirt around its FEHA obligations by retaining problematic rainmakers on a contract basis?
An employerâ€™s statutory obligations under FEHA are to control that which it can control, i.e., the work environment provided for employees. An employer cannot ignore this obligation simply because a third party is the one infecting its workplace with unlawful animus.

CONCLUSION
For the foregoing reasons and authorities, Amicus California Employment Lawyers Association respectfully requests that the Court reverse the trial courtâ€™s ruling, and recognize an employerâ€™s liability under FEHA for knowingly permitting a third party to harass one of its employees.

Dated: March 14, 2002 LAW OFFICES OF JEFFREY K. WINIKOW

_____________________________________
Attorneys for Amicus Curiae
California Employment Lawyers Association

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Moron, (oops, am I allowed to say that in this crazy free country?), I enclosed the code you dug up. Please, in your infinite wisdom.....