Recent headlines out of Hollywood, Silicon Valley and elsewhere have highlighted that sexual harassment can occur in non-employment relationships. California addressed this issue when it enacted Civil Code §51.9. Although the law is over twenty years old, it has received little attention and use relative to its counterparts like Title VII and FEHA that apply in the employment context. Given the current climate that seems likely to change.
Under §51.9 there is a private civil cause of action against both individuals and companies for sexual harassment in various business, service and professional relationships. Victims of such harassment may recover economic, noneconomic, and punitive damages, and attorneys’ fees. (Cal. Civil Code §§ 51.9, 52(b); C.R. v. Tenet Healthcare Corp. (2009), 169 Cal. App. 4th 1094, 1110 (confirming both corporations and natural persons can be liable under §51.9)).
To establish liability under § 51.9, the plaintiff must establish the following elements:
- There was a “business, service, or professional relationship” between the plaintiff and defendant;
- The defendant made “sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender;”
- The defendant’s conduct was “unwelcome and pervasive or severe;”
- The plaintiff cannot easily terminate the relationship with defendant;
- The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of defendant’s conduct.
The first prong— “business, service, or professional relationship”—is broadly defined by the statute to encompasses a wide-variety of relationships, including those between the plaintiff and a physician, psychotherapist, dentist, attorney, social worker, real estate agent, real estate appraiser, investor, accountant, banker, trust officer, financial planner, loan officer, landlord, and teacher and as well as any “substantially similar” relationship. (Cal. Civil Code §51.9 (emphasis added).
In direct response to the headlines referenced above, the California legislature is currently considering a bill that would add “investor,” “elected officials,” “lobbyists,” and “director or producer” to this list of covered relationships. (Senate Bill “SB” 224). The legislative analysis for SB 224 notes that the statute is intended just as a declaration of existing law. That’s because the list of relationships in §51.9 is not exhaustive and the positions SB 244 seeks to add arguably already fall under the “substantially similar” catchall. The purpose of SB 224 thus is to simply “highlight[] and provid[e] additional notice to people in these roles that they can be sued for engaging in sexual harassment of those over whom they wield so much power and influence.” Therefore, even if SB 224 does not pass, investors, elected officials, lobbyists, directors or producers can all face sexual harassment liability under existing law.
Once the requisite “business, service, or professional relationship” relationship is established, the harassing conduct will be analyzed under the same framework as in the employment context. In one of the relatively few published opinions involving §51.9, the California Supreme Court concluded that by using the phrase “pervasive or severe,” §51.9 intended to mirror Title VII and FEHA. (Hughes v. Pair, 46 Cal. 4th 1035, 1048 (2009)).
Hughes involved claims against the trustee of the plaintiff’s minor son’s trust. When the plaintiff requested that the trust approve certain payments, the trustee made various inappropriate comments to her on a phone call. For example, he called her “sweetie,” and “honey,” told her she was beautiful, and suggested that if she would be “nice” to him he would approve the trust payment she requested. Then, later that same day, plaintiff saw the defendant at a museum event, and she alleged that he told her “I’ll get you on your knees eventually. I’m going to fuck you one way or another.”
Relying on employment precedent, the court held that all the alleged statements were neither pervasive nor severe. The court explained that to be pervasive, the sexually harassing conduct must consist of more than a “few isolated incidents” and here, all the alleged statements occurred on a single day. In terms of whether the alleged conduct was “severe” within the meaning of §51.9, the court explained that an isolated incident of harassing conduct may qualify as “severe” when it consists of a “physical assault or the threat thereof.” It then concluded that defendant’s alleged comment that “I’ll get you on your knees eventually. I’m going to f–k you one way or another,” was not actually threat of physical violence but rather of “financial retaliation” and therefore did not qualify as “severe.” (Id. at 1048-1049).
Hughes, however, should not deter future victims from pursuing §51.9 claims. By imposing the same high standard that employee-plaintiffs already face, it certainly does not foreclose the possibility that future plaintiffs may find success with §51.9 just as employees continue to find relief under FEHA and Title VII. Whether the conduct is sufficiently pervasive or severe to give rise to §51.9 liability will depend on the facts of each case. And, a lot has changed since 2009. One would hope that a court today would not be quite so quick to minimize and defend conduct like the trustee displayed in Hughes.
If you were sexually harassed by someone that you had a business, professional, or service relationship with, please contact Sarah Starcevich Miller to discuss in more detail what remedies you may have available.
Disclaimer: All materials have been prepared for general information purposes only to permit you to learn more about Sebastian Miller Law, P.C, its services and experience. The information presented is not legal advice, is not to be acted on as such, may not be current and is subject to change without notice.