Interesting new employment case today from the Third District Court of Appeal, Charlene Roby v. McKesson Corporation. This disability discrimination and harassment case was tried in Yolo County, not typically considered a dangerous venue for employers and other business litigants. After a jury, in the Court's words, "threw the book at McKesson," awarding the plaintiff more than $3.5 million in compensatory damages and $15 million in punitive damages, McKesson went to the Court of Appeal to see if they could make things better.
Much of the Court's opinion is going to be unpublished (making it unciteable in California), but in the cited section, the Court distinguished between the amount and type of evidence necessary to sustain a harassment verdict compared to that which would support a finding of discrimination. The plaintiff's disability was a susceptibility to panic attacks, which caused her many absences and also caused a body odor which a number of co-employees found objectionable. Her supervisor did the following: (1) gave small gifts and pies to all employees but plaintiff; (2) made plaintiff document all her calls and answer the telephone during the Christmas party; (3) greeted all employees but plaintiff, who she ignored; (4) made a "throat slash" gesture when plaintiff was on the telephone, then reprimanded her loudly in front of others; (5) called plaintiff's job a "no-brainer;" (6) told plaintiff her "arm digging" and heavy sweating (both related to the panic attacks) were disgusting; (7) showed plaintiff no compassion for her condition, and told her to bathe more frequently; and (8) did nothing when someone left soaps, shampoos and deodorants at the plaintiff's desk.
The Court held that while this was discriminatory, and hence actionable under California's Fair Employment and Housing Act, it wasn't the same thing as harassment. Under Reno v. Baird (1998) 18 Cal.4th 640, harassment must be a type of conduct not necessary for job performance. Therefore, the supervisor's acts in giving her undesirable work assignments, ignoring her at staff meetings, reprimanding her or casting her job in an unfavorable light could not constitute harassment. On the other hand, they could constitute discrimination, and, interestingly, the defendant did not challenge the finding of discrimination.
Incidentally, in an unpublished part of the opinion, the Court both reduces the part of the compensatory award it finds duplicative and conducts an exhaustive State Farm v. Campbell review of the punitive damages award before finding that slightly better than a 1-to-1 ratio reaches the compensatory limits in this case.