California Court Overturns Verdict in Favor of Former Massage Therapist

Dickson v. Burke Williams, Inc., No. B253154 (filed March 6, 2015; modified March 24, 2015): In a unanimous published decision, the California Court of Appeal recently held that an employee cannot maintain a claim for failure to prevent sexual harassment if the underlying harassment was not sufficiently severe or pervasive to result in liability. In addition, the court held that where there is no adverse employment action supporting a worker’s discrimination claim, her failure to prevent sex discrimination claim is barred.

Domaniqueca Dickson worked as a massage therapist for Burke Williams, Inc. at one of its California day spa locations. Dickson alleged that she was subjected to sexual harassment, racial harassment, and sex discrimination by two spa customers. In her lawsuit, Dickson accused Burke Williams of discrimination, harassment, and failure to prevent discrimination and harassment under California’s Fair Employment and Housing Act (FEHA). The suit proceeded to a jury trial.

The jury found Burke Williams was not liable for sexual or racial harassment because although Dickson was subjected to unwanted harassing conduct because of her sex and race, the conduct was not “severe or pervasive” and therefore not actionable under FEHA. The jury also denied Dickson’s sex discrimination claim, finding that she did not suffer an adverse employment action.

Despite denying Dickson’s harassment and discrimination claims, the jury nonetheless found Burke Williams liable for failure to take reasonable steps to prevent sexual harassment and sex discrimination and awarded Dickson $35,000 in compensatory damages and $250,000 in punitive damages. Burke Williams filed for judgment notwithstanding the verdict arguing that since Dickson did not demonstrate actionable harassment or discrimination, it was an error of law to find it liable for failure to prevent harassment and discrimination. The trial court sided with Dickson, finding that the jury’s verdict form stating that Dickson had suffered harassment, even if it was not severe or harassing enough to be actionable, supported her failure to prevent claim.

The Court of Appeal reversed and directed that judgment be entered for Burke Williams, clarifying that there can be no claim for failure to prevent harassment or discrimination without actionable harassment or discrimination.

Practical Impact

Employers can now breathe a sigh of relief knowing that there is some logical correlation between plaintiffs satisfying all elements of their harassment and/or discrimination claim before being able to collect on a failure to prevent claim. In addition, the Dickson case demonstrates the importance of implementing effective anti-harassment policies and procedures, including prompt investigations and remedial actions to curtail any alleged harassment before it becomes severe and pervasive. Finally, when a case goes to trial, Dickson shows the need to carefully draft verdict forms that guide the jury to the legal perquisites for derivative claims.