Employers Must Take Reasonable Steps To Correct Workplace Harassment Even When It Is Part Of The Job

In Turman v. Turning Point of Central California, Inc., on an appeal from a defense verdict in a case of alleged gender discrimination, the California Court of Appeal affirmed in part and reversed in part. The court affirmed the trial court’s decision, as to the wrongful termination claim, to instruct the jury on a disparate impact theory instead of the disparate treatment theory pleaded by the plaintiff. The court reversed, however, as to the hostile work environment claim, holding that an employer must take immediate and appropriate action to correct a hostile environment even though the harassment may be inherently part of the job.

The Underlying Facts

The plaintiff, Joyce Turman, worked for the defendant, Turning Point of Central California, as a resident monitor on the night shift at a halfway house where prisoners lived pending their release back into society. The male residents frequently propositioned her for sex and subjected her to sexually offensive name-calling. When she complained to her supervisor, he assured Turman that the residents did not "really mean it" and that she should try to be “nicer to 'em."

When Turman sought time off for stress resulting from the residents' abuse, her request was denied and the following day her employment terminated, for the stated reason that a funding cut would leave only one employee on the night shift, and that Turning Point's federal contract prohibited having a woman working alone at night.

Turman’s Claims and Jury Findings

Plaintiff sued for gender discrimination and hostile work environment in violation of the Fair Employment and Housing Act (FEHA). The gender discrimination claim asserted a disparate treatment theory, arguing that Turman was released because she was a woman. At trial, Turning Point established it followed a federally mandated policy that the urinalysis of a resident must always be conducted by a resident monitor of the same sex. Since Turning Point had to reduce the night shift staff to one person for financial reasons, that employee needed to be male for drug testing purposes.

The trial court instructed the jury on the theory of disparate impact, not disparate treatment, because Turman’s claim stemmed from Turning Point’s facially neutral policy requiring employees of the same sex to perform urinalysis testing on residents. Relying on this instruction, the jury found that Turning Point did not have an employment practice that had a disproportionate impact on women. The jury also found that, although Turman was subjected to a hostile work environment, Turning Point did not fail to take immediate and appropriate corrective action. Turman appealed.

Court of Appeal Decision

On appeal, Turman argued that the trial court erred in instructing the jury on disparate impact instead of disparate treatment. While a discrimination claim under a disparate treatment theory requires proof of intentional discrimination, a claim under the disparate impact theory requires a showing that, regardless of motive, a facially neutral employer practice or policy had a disproportionate adverse effect on members of the protected class, in this case, women. The Court of Appeal held the trial court did not err in instructing the jury on a disparate impact theory, because the evidence presented at trial was consistent with disparate impact and not disparate treatment.

Turman also disputed the jury’s finding that Turning Point took immediate and appropriate action in response to her complaints about a hostile work environment. Because there was no evidence that Turning Point actually did take steps to address the residents’ harassment of Turman, Turning Point sought to defend the verdict by arguing to the Court of Appeal that “harassment by prisoners [was] inherently part of the job.” The court rejected this argument, ruling that while enduring inappropriate behavior by prisoners may be “inherently part of the job” in a restrictive, penal environment, an employer cannot refrain from taking corrective action in response to complaints. Because there was no evidence that Turning Point took any responsive action other than telling Turman to issue fewer disciplinary citations so the residents would not continue “to be mad at her,” the Court of Appeal found the jury’s finding was not supported by substantial evidence. The jury’s verdict on this claim was reversed and remanded to the trial court for further proceedings.

What Turman Means for Employers

Turman serves as a good reminder that employers must always immediately address and take appropriate action when responding to employee complaints of a hostile work environment. Turman confirms that this duty exists regardless of the fact that harassment may be more inherent in certain types of work environments. The nature of the environment can help determine whether the employer’s response was reasonable, but cannot not absolve the employer of all responsibility.

For more information, please contact the Seyfarth attorney with whom you work, or any Labor and Employment attorney on our website.