Employee Successfully Sues Employer Under a State ‘Hate Crime’ Law Without First Exhausting Administrative Remedies Under FEHA

January 2013

A California Court of Appeal has upheld a jury award of compensatory damages, a civil penalty and attorney fees to an employee who sued her employer for violence suffered in the workplace under a state law that creates remedies for specific hate-related crimes.  (Ventura v. ABM Industries Inc. (12/20/12, No. B231817)).  In doing so, the Court allowed the plaintiff to recover damages and attorney fees for an unlawful act committed in the workplace while bypassing the Fair Employment and Housing Act (“FEHA”) requirement of exhausting administrative remedies.

In this fact-specific case, the plaintiff brought a claim against her employer under Civil Code section 51.7 (or, the “Ralph Act”), a California “hate crime” statute which provides civil remedies for violence, or intimidation by threat of violence, committed based on certain characteristics, including sex. Unlike a traditional sexual harassment claim under the FEHA, the Ralph Act does not require a plaintiff to exhaust administrative remedies prior to proceeding to court.  However, the Ralph Act does require a plaintiff to make a showing of threats or acts of violence; accordingly, workplace harassment claims that do not include allegations or facts to suggest the presence of actual or threatened violence would likely not be actionable under the Ralph Act.

Here, plaintiff Sylvia Ventura, a janitor for ABM Industries Inc. (“ABM”), alleged a history of harassment as well as threats and acts of physical violence, including choking and biting, by her supervisor.  Ventura claimed that ABM approved and ratified the supervisor’s conduct by not disciplining him, even after she produced voicemail recordings of harassing phone calls. Ventura argued that her supervisor’s actions were appropriately addressed by the “hate crime” statute because she was subjected to threats of and actual violence in the workplace based on her gender.  The jury agreed with Ventura and awarded her $100,000 in compensatory damages and $550,000 in attorney fees.  In addition, Ventura was granted a $25,000 civil penalty, a remedy available to successful plaintiffs under the Ralph Act.

The Court of Appeal upheld the jury’s verdict, the civil penalty and the award for damages and attorney fees.  The Court first rejected ABM’s argument that the doctrine of workers’ compensation barred the claim for negligent supervision and hiring because ABM waived that defense by failing to ask the trial court to dismiss the cause of action on those grounds.  Next, the Court affirmed that the Ralph Act can apply to employment cases where an employee is subjected to threats or acts of violence in the workplace.  The Court further upheld ABM’s liability in the matter based on the employer’s “ratification” of the supervisor’s acts, reasoning that such liability is appropriate where an employer fails to investigate or otherwise respond to charges that an employee committed an intentional unlawful act, such as battery.

Finally, the Court reasoned that, although the Ralph Act is considered a “hate crime” statute,  a plaintiff is not required to show that threats of or actual violence were motivated by “hate” in order to prevail under the statute.  Rather, the Court explained, the term “hate crime” is “perhaps an unfortunate use of the expression, because the statute itself does not define a crime and does not require a plaintiff to prove hate.”

Employers in California are advised to be aware of this case because it represents what the dissenting opinion characterized as a “novel and unprecedented avenue for an attorney fees and penalty award,” as by making a claim under the Ralph Act instead of FEHA, Ventura was able to proceed directly to court rather than first exhausting administrative remedies.  However, employees will only be able to seek redress under the Ralph Act in certain cases alleging threats or acts of violence in the workplace while those seeking relief under FEHA will continue to be required to exhaust administrative remedies.

If you have any questions regarding this matter, please call one of our six offices.

F3 NewsFlash prepared by Joshua Stevens and John Norlin.
Joshua is a partner in the F3 Oakland office.
John Norlin is Special Counsel in the F3 San Diego office.

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