Etter v. Veriflo Corporation

MODIFICATION

CIVIL RIGHTS

EMPLOYMENT LAW

Instruction concerning racially hostile environment claim correctly states that harassment must be more than occasional. ROBERT ETTER, JR., Plaintiff and Appellant, v. VERIFLO CORPORATION, Defendant and Respondent. No. A077997 (Contra Costa County Super. Ct. No. 9600569) California Court of Appeal First Appellate District Division One Filed November 16, 1998
        The opinion filed October 20, 1998, is ordered modified in the following respects.

        1. On page 2,1 footnote 2 is deleted and replaced with the following footnote:

        Because no issue is raised on appeal concerning Veriflo's vicarious liability for Grigsby's conduct, we need not discuss the facts surrounding the controversy at trial over whether Anita Grigsby was plaintiff's supervisor. (Cf. Burlington Industries, Inc. v. Ellerth (1998) 118 S.Ct. 2257.)

        2. On page 3,2 in the first paragraph, the first sentence is amended to read:

Plaintiff did, however, complain to Kelly Services.

        3. On page 3,3 the second paragraph is deleted.

        4. On page 3,4 in the third paragraph, "conceded that she" is inserted in the second sentence between "She" and "did," and in the third sentence "testified that he" is inserted between "plaintiff" and "did," so that the paragraph reads as follows:

        Anita Grigsby denied that she ever called plaintiff "boy" instead of his name. She conceded that she did use the expression, "oh, boy." But plaintiff testified that he did not find that expression derogatory.

        5. On page 4,5 line 4, the word "used" is changed to "use."

        6. On page 4,6 in the third sentence of the second full paragraph, the word "it" is replaced with "the remark."

        7. On page 6,7 the last paragraph is deleted and replaced with the following:

        In summary, we discern from these opinions that the "severe or pervasive" standard establishes a threshold test for assessing the offensive conduct. Under that standard, trivial (i.e., not severe) or occasional, sporadic, or isolated (i.e., not pervasive) incidents of verbal abuse are not actionable.

        8. On page 7,8 at line 14, the word "threshold" is inserted between "federal" and "standard."

        9. On page 10,9 at line 10 of the first full paragraph, the words "the frequency of the conduct and" are inserted between "including" and "whether" so that the sentence reads as follows:

The jury was correctly informed that it must find "severe or pervasive" harassment, and the instruction advised the jury of the factors identified in Harris v. Forklift Systems for evaluating Grigsby's conduct, including the frequency of the conduct and whether the racial conduct was physically threatening or humiliating or merely an offensive utterance.

        10. On page 10,10 the last line of the first full paragraph is deleted and replaced with the following:

The challenged language that the acts must be more than occasional, isolated, sporadic (i.e., pervasive), or trivial (i.e., severe) was consistent with the legal standard.

        11. The last paragraph commencing on page 1011 and continuing onto page 11 is deleted and replaced with the following paragraph, including a new footnote.

        In conclusion, we find no error in the jury instruction given here. We emphasize that our approval of the jury instruction is in no way an approval of the hurtful and demeaning remarks allegedly made here. Racial slurs have no place in the work environment or in any environment. Contrary to plaintiff's assertion, however, the law does not exhibit "zero tolerance" for offensive words and conduct. Rather, the law requires the plaintiff to meet a threshold standard of severity or pervasiveness. We hold that the statement within the instruction that severe or pervasive conduct requires more than "occasional, isolated, sporadic, or trivial" acts was an accurate statement of that threshold standard.8/ And under the state of the evidence here, the instruction was unquestionably relevant to the issue before the jury.

8/        We are aware that the new BAJI instruction no. 12.05 identifies the Harris factors without mentioning that "occasional, isolated, sporadic, or trivial" conduct is not actionable. Because that instruction is not before us, we express no opinion about it. We do not suggest that the instruction given here was a model instruction, only that it was not erroneous.
        There is no change in the judgment. The petition for rehearing is denied.


1.        See Daily Appellate Report of October 27, 1998, page 11073, column 1, footnote 2.

2.        See Daily Appellate Report of October 27, 1998, page 11073, column 2, paragraph 4, line 1.

3.        See Daily Appellate Report of October 27, 1998, page 11073, column 2, paragraph 5.

4.        See Daily Appellate Report of October 27, 1998, page 11073, column 2, paragraph 6, lines 2 and 3.

5.        See Daily Appellate Report of October 27, 1998, page 11073, column 2, paragraph 11, line 6.

6.        See Daily Appellate Report of October 27, 1998, page 11074, column 1, line 2.

7.        See Daily Appellate Report of October 27, 1998, page 11074, column 2, paragraph 2.

8.        See Daily Appellate Report of October 27, 1998, page 11074, column 2, paragraph 3, line 21.

9.        See Daily Appellate Report of October 27, 1998, page 11075, column 2, paragraph 2, line 15.

10.        See Daily Appellate Report of October 27, 1998, page 11075, column 2, paragraph 2, lines 17-21.

11.        See Daily Appellate Report of October 27, 1998, page 11075, column 2, paragraph 3.