Farmers Insurance Group v. County of Santa Clara

WERDEGAR, J.

I fully concur in the majority opinion. I write separately to highlight what I perceive to be an analytical flaw in Justice Mosk’s dissent.

What this case asks is whether a public-entity employer, here Santa Clara County, that is directly liable for its own negligence in connection with coemployee sexual harassment, and automatically liable for harassment by a supervisor (Gov. Code, § 12940, subd. (h)), should, in addition, be required under principles of respondeat superior to indemnify the proven wrongdoer (see Gov. Code, §§ 825, 995) merely because his wrongful acts occurred at the worksite, during work hours. As the majority aptly demonstrates, law, logic, common sense and public policy dictate the answer be “no.”

In determining whether an employer is strictly liable for its employee’s tort under the doctrine of respondeat superior, Justice Mosk, like the majority, acknowledges the test we should apply is “whether the employee’s *1024 conduct was reasonably foreseeable ‘in the context of the particular enterprise’ in which it took place.” (Dis. opn. of Mosk, J., post, at p. 1029.) Purporting then to apply this test, Justice Mosk asserts that the relevant question therefore “is the incidence of sexual harassment by coworkers in traditionally male workplaces, and specifically in county jails, that have recently been integrated by sex.” (Ibid., italics in original.) Having thus framed the “relevant” question, Justice Mosk concludes Deputy Nelson’s conduct was foreseeable for respondeat superior purposes, because it occurred at a time when Deputy Bates was one of the few women to integrate a formerly and traditionally all-male workplace—a big-city jail—and studies and case law “both show that harassment by coworkers is pervasive in traditionally male workplaces that have recently been integrated by sex . . . .” (Ibid.)

In thus relying on the asserted frequency of sexual harassment in male-dominated workplaces, Justice Mosk, in my view, has confused the fact of male resentment of female encroachment on what previously may have been viewed as exclusively male “territory,” with the concept of the nature of the duties and tasks the employees of the enterprise, male or female, are required to perform. That sexual harassment might be a foreseeable consequence of integrating a workforce due to male resentment of the female presence, that it may even have been predictable, is not, however, to say such harassment is “reasonably foreseeable ‘in the context of the particular enterprise’ ” as that concept applies to respondeat superior liability. Reasonable foreseeability in the latter sense embodies legal and policy judgments about the degree to which it is fair to impose liability on the employer for an employee’s conduct. The dissent oversimplifies these difficult judgments by treating “foreseeability” primarily as a matter of statistics. The cited cases do not, in my view, support such an approach.

Justice Mosk relies on Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652 [ 171 P.2d 5 ] for the broad principle that because “[m]en [or women] do not discard their personal qualities when they go to work” (id. at p. 656), an employer is liable for injuries inflicted by one employee on another caused by such human qualities as animosity or emotional flare-up (dis. opn. of Mosk, J., post, at pp. 1033-1034). But Carr involved a dispute between two employees, one a contractor and the other a subcontractor, over the performance of their tasks. Rejecting the argument that when the defendant threw his carpenter’s hammer at the plaintiff he was not acting in the scope of his employment, this court held that for liability to apply “[i]t is sufficient. . . if the injury resulted from a dispute arising out of the employment” ( 28 Cal.2d at p. 654 )—i.e., out of the performance of the employees’ duties (id. at p. 657).

*1025 The opinion in Carr v. Wm. C. Crowell Co., supra, 28 Cal.2d 652 , rather than supporting Justice Mosk’s view, instead highlights the difficulty of articulating a plausible link between sexual harassment and Deputy Nelson’s duties as a deputy sheriff. That sexual harassment in the workplace occurs frequently, or in some enterprises is pervasive, is deplorable. That it does thus occur is not, however, determinative of the issue before the court. As the majority correctly observes, “evidence of the general prevalence of sexual harassment in . . . newly integrated work environments has little, if any, probative value in determining whether” sexual harassment of a female deputy sheriff is a risk “broadly incidental” to the operation of a county jail and, thus, one for which the law imposes liability on the employer. (Maj. opn., ante, at p. 1009.)

Justice Kennard’s views in this respect are similar to Justice Mosk’s. While she believes the relevant facts are disputed, Justice Kennard nevertheless finds potentially dispositive the factual question whether Deputy Nelson’s “behavior was typical of the activities of employees at the jail . . . .” (Dis. opn. of Kennard, J., post, p. 1043.) Does this mean that identical acts of sexual harassment in the state’s many county jails are, or are not, within the scope of employment depending upon the frequency of harassment in each? Is sexual misconduct broadly incidental to the operation of jails in some counties but not in others? To my mind, the implausiblity of such a conclusion illustrates the error in giving overly much weight to statistical considerations.

Because Deputy Nelson’s sexual harassment of Deputy Bates was not broadly incidental to his duties as a deputy sheriff, the County of Santa Clara cannot be held strictly liable for his tortious actions under the doctrine of respondeat superior.