For 20 years, a Bay Area officer for the California Highway Patrol said he was harassed and even endangered by his co-workers because of his homosexuality. The San Francisco Chronicle reported that as if enduring constant taunts and vandalism at numerous substations wasn’t enough, the openly gay officer reported that on a daily basis, he was denied backup from his colleagues while handling dangerous calls. He was the only officer consistently denied backup. When he won offer of the year, the picture of the previous year’s winner remained prominently in the lobby, until the following year when someone else won. No one else had been denied that honor. He began to suffer anxiety, stress, headaches and stomach issues. He became suicidal. He filed for workers’ compensation, and was eventually granted disability retirement, effectively ending his employment with the agency.
In 2016, he filed his second administrative complaint with the Department of Fair Housing and Employment, alleging sexual orientation discrimination, harassment, failure to prevent harassment, retaliation and intentional infliction of emotional distress. A request for summary judgment in favor of the defense was granted on the basis of a missed filing deadline.
Now, a California appellate court has reinstated his case, finding merit with plaintiff’s claim for exception under the doctrines of equitable tolling, continuing violation and constructive discharge.
Our Los Angeles LGBT discrimination attorneys are committed to helping those who have faced workplace harassment, hostility and discrimination due to their sexuality obtain justice.
Equitable tolling allows the suspension or extension of statutory limitations periods under certain circumstances. Three elements must be established to assert equitable tolling: Timely notice, lack of prejudice (the defense’s case isn’t hurt by the later filing) and reasonable and good faith on the part of the plaintiff. Here, plaintiff argued that his filing of the workers’ compensation claim should have paused the one-year filing deadline. The appellate court held that a jury could reasonably find the workers’ compensation claim put the department on notice of possible discrimination claims, given that the underlying cause of that claim was stress injury caused by harassment and a hostile working environment. Plus, plaintiff’s superiors were well aware of his concerns about discrimination. The court also held equitable tolling wouldn’t prejudice the defense, and that plaintiff acted in good faith, even though he didn’t file his claim for 11 months after his workers’ compensation case had been resolved. The appellate panel noted plaintiff had allegedly sustained years of hostility and harassment and could not work because he was suicidal.
Continuing violation allows an employer to be liable for acts occurring before a limitations period if they are sufficiently linked to unlawful conduct that occurred within the period. The court held that plaintiff had presented sufficient evidence for a reasonable jury to find that similar kinds of actions occurred both prior to and during the limitations period. These acts were noted to have occurred with reasonable frequency – as in every single day – as opposed to something intermittent and discontinuous.
Finally, the appellate court ruled the trial court erred in concluding plaintiff couldn’t establish constructive discharge. To establish this, an employee must show that working conditions were so aggravated or intolerable that a reasonable employee would be forced to resign. Here, this officer was routinely (daily, he says) forced to respond to dangerous scenes by himself, putting his life in jeopardy (not to mention those of the public). His own captain testified that denying backup to an officer would put that officer in a very precarious situation. Objectively, any officer would have found this intolerable – and that is before even touching on the issue of daily harassment and outright hostility.
The court thus reversed and remanded the case back to the lower court for trial.
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Brome v. California Highway Patrol, Jan. 28, 2020, California Court of Appeal, First Appellate District, Division Five