Blurring the Distinction between Discriminatory Conduct and Harassment – California Supremes Decide Roby v. McKesson Corp.

As a result of a November 30, 2009 decision, the California Supreme Court (the Court) has now paved the way for employees to more easily establish harassment claims against individual supervisors.

Toward the end of her 25-year customer service career at McKesson Corporation, Roby began experiencing unanticipated, temporary “panic attacks” which caused her to be absent from work unexpectedly.  Roby’s immediate supervisor, Karen Schoener, openly expressed her displeasure with Roby’s poor attendance record.  Compounding this problem, Roby’s medication gave her unpleasant body odor and she also developed a nervous disorder causing her to dig her fingernails into her arms, producing unpleasant open sores.  Schoener made disparaging remarks about Roby’s body odor in front of other workers and she also called Roby “disgusting” because of her open sores and excessive sweating.  Schoener reprimanded Roby in front of her coworkers and spoke about her job in a demeaning manner.  Schoener also openly ostracized Roby, ignored her at staff meetings, refused to give her holiday gifts or travel trinkets, and excluded Roby from office parties by ordering her to cover the office telephones.  Roby complained to senior management about Schoener’s conduct but to no avail.

McKesson suspended Roby pending an investigation into her excessive absences and then terminated her shortly thereafter.  After her termination she depleted her savings, lost her medical insurance, developed agoraphobia (anxiety in public places) and became suicidal.

Following a jury trial against defendants McKesson and supervisor Schoener for wrongful employment termination, discrimination, harassment and failure to accommodate, the trial court rendered judgment of approximately $3.5 million against McKesson and $500,000 against Schoener.  In a separate verdict, the jury found punitive damages of $15 million against McKesson and $3,000 against Schoener.

Both defendants appealed.  The appellate court held that Roby’s evidence was insufficient to support the harassment verdict, stating that a plaintiff may not use personnel management actions as evidence in support of a harassment claim.  The appellate court thus threw out the harassment verdict as to Schoener and also reduced Roby’s award to $1.405 million plus $2 million in punitives.

The California Supreme Court disagreed, ruling that the appellate court erred when it divvied up Roby’s evidence between her harassment claim and her discrimination claim.

Under California law, discrimination focuses on explicit changes in the terms, conditions or privileges of employment, that is, changes involving some official action taken by the employer, such as hiring, firing, failing to promote, adverse job assignment, or change in pay or benefits.

Harassment, on the other hand, focuses on situations in which the workplace’s social environment becomes unacceptable because the harassment suffered on the job communicates an offensive message to the victim.

Even though discrimination and hostile work environment harassment are different legal constructs, evidence of discrimination is not necessarily different from evidence of harassment.  The Court stated that the evidence brought forth to establish discrimination and harassment claims can overlap and thus “acts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager was similarly motivated by discriminatory animus.”

Because the appellate court had incorrectly separated out and disregarded the “business and management” evidence when determining whether Roby was unlawfully harassed, the Supreme Court reinstated the jury’s harassment verdict against McKesson and Schoener.

Thus, when evaluating whether a supervisor has engaged in unlawful harassment in the workplace, the trial court (and jury) need to consider all of the supervisor’s conduct, even conduct that would ordinarily be construed as “official” acts made on the company’s behalf under the supervisor’s managerial duties and functions.  Managerial acts which previously could only support a discrimination claim may now be used to prove individual harassment liability against the acting supervisor.  Therefore, plaintiffs may have an easier time defeating summary judgment and bringing their case to trial since they are now permitted to introduce a broader range of evidence in support of their harassment claim.

If you have any questions, please contact me or any of our other employment law attorneys.   Best, Cindy Bamforth