Common Law, Common Problem?

Most employers are already aware of their exposure to lawsuits based on statutory causes of action for discrimination or harassment. Such lawsuit can be brought under the California Fair Employment and Housing Act (FEHA), Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Such causes of action have been around for some time; consequently, human resource departments are well aware of these threats and have for the most part developed policies to address them.

However, beyond the usual suspects, employers should be wary of a new and lurking threat: common law causes of action.

Most employers are already aware of their exposure to lawsuits based on statutory causes of action for discrimination or harassment. Such lawsuit can be brought under the California Fair Employment and Housing Act (FEHA), Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Such causes of action have been around for some time; consequently, human resource departments are well aware of these threats and have for the most part developed policies to address them.

However, beyond the usual suspects, employers should be wary of a new and lurking threat: common law causes of action.

In addition to filing lawsuits for violations of the various antidiscrimination statutes jilted employees could also avail themselves of an ever growing number of causes of action based on the common law. Since the mid 80's California's courts have allowed employees to sue their employers for assault and battery. In a suit for assault and battery a employee could sue his company because a co-worker touched him in a manner which the employee found to be harmful or unpleasant. Additionally, California's courts have also imposed liability on employers for the intentional infliction of emotional distress. Such cases are commonly filed when one worker refers to another using a racial epithet.

Furthermore, alleged incidents of sexual harassment have served as the basis for a lawsuit for negligent retention, negligent hire and negligent supervision. While allegations of discrimination have served as grounds for a lawsuit for negligent supervision and retention. In these cases the plaintiffs claim that the company was aware of the manager's sexual harassment or discriminatory conduct and despite such knowledge allowed the manager to continue his  behavior.

Employers should be concerned about these alternative forms of bringing suits for harassment and discrimination because these methods are in many ways very advantageous for plaintiffs. First and foremost the common law causes of action provide employees with a longer period of time to file a law suit. For example, under Title VII a claim must be brought to an administrative agency within 180 days. Likewise, under FEHA, a claim must be brought within a year. Conversely, in a suit for assault and battery or negligence the employee is allowed two years to file a claim. Additionally, if he files a common law action the employee does not need to deal with administrative agencies like the EEOC. Instead of going through the agency's review process, which often includes mandatory mediation, the employee is free to simply file a lawsuit.

Even more troubling is the fact that common law causes of action have lower standards of proof that their statutory counterparts. For example, in order to prevail in a statutory claim for sexual harassment the plaintiff must show that the conduct alleged is severe and pervasive. However, if the employee files an action for battery he may prevail if there has only been one incident. Most courts would likely refuse to find that a single incident meets the definition of severe and would therefore refuse to allow recovery in a statutory cause of action. Likewise, in order to recover under the antidiscrimination statutes in a discriminatory harassment case the employee must establish that the harassment is linked to his membership in a protected group such as race, sex or national origin. Consequently, even if the court finds that the harassing conduct did occur, liability will not be imposed unless the court also finds that the conduct was the result of the plaintiff's membership in a protected group. Conversely, if the very same plaintiff files an action for intentional infliction of emotional distress there is no need to establish that the conduct is related to the plaintiff's membership in a protected group.

Employers need to be aware of these new and troubling sources of liability and should draft new policies and procedures which these new risks. Tredway, Lumsdaine & Doyle's attorneys have decades of experience in employment law. This Holiday Season come in and consult with one of our attorneys. They can help your business craft policies and procedures to address these threats. Together we can make sure that this Holiday Season will be festive for both employers and employees alike.