Thomas v. Regents of the University of California – Opinion on demurrer to Cal. Civ. Code §51.9 for sexual harassment – pleading that she/Thomas would not have been treated in the same manner if she were a man

I have attached below a pdf of the recent Opinion in Renee Thomas v. Regents of the University of California, et al. The Opinion is on what is called a demurrer – which is a motion by a defendant in which the defendant argues that assuming everything that is alleged in the complaint (or amended complaint in this case) is true, plaintiff still has not pleaded a legal and factual claim upon which plaintiff can recover, and that, accordingly, the complaint (or amended complaint in this case) should be dismissed and plaintiff should recover nothing.

The attached Opinion is long; however, it is interesting reading both for the allegation that are made (i.e., allegations of harassment and/or sexual harassment in the University/school athletic women’s soccer team setting) and for the discussions about the law that is applicable to each of the causes of action that are alleged.

But I am writing this blog post for the purpose of briefly discussing only the part of the Opinion relating to the demurrer on what the Court has identified or defined as a cause of action under California Code of Civil Procedure §51.9 for sexual harassment, and I am only discussing one aspect of that part of the Opinion – the part in which the Court discusses that on a claim for sexual harassment under Cal. Civ. Code §51.9, the sexual harassment element of that claim can be pleaded and sufficiently alleged and ultimately recovered upon in different ways one of which is upon sufficient allegations that in the context of the Thomas case if she can allege (and then prove) that she would not have been treated in the same manner if she were a man. Thus, for example, the wrongful conduct does not have to involve direct sexual conduct.

The trial court granted the demurrer against each cause of action. The Court of Appeal did so also but allowed plaintiff the opportunity to amend the complaint again to try to state a proper and allowable claim under Cal. Civ. Code §51.9 for sexual harassment.

As I typically try to do, below I have pasted select wording from the Opinion because I believe it is beneficial for you to be able to read the actual, exact wording from the Court’s actual source Opinion. Thus, below I have provided select wording pertaining to the part of the Opinion discussing Cal. Civ. Code §51.9 in the context of the pleading allegations and whether Thomas can sufficiently plead on a demurrer that she would not have been treated in the same manner if she were a man (which, of course, she would also ultimately have to prove). However, you do need to read the entire Opinion to fully understand what the Court has held. I have also pasted below Cal. Civ. Code §51.9. Please also note that although Thomas v. Regents of the University of California is based on the allegations of that case (i.e., allegations of harassment and/or sexual harassment in the women’s soccer team setting), the reasoning of the Court could be applicable (at least in legal theory) to any sufficient allegation (and upon proof) of sexual harassment under Cal. Civ. Code §51.9 and would not be limited to a University or women’s or athletic or soccer team settings.  

The following is Cal. Civ. Code §51.9:

Cal. Civ. Code §51.9

(a) A person is liable in a cause of action for sexual harassment under this section when the plaintiff proves all of the following elements:

(1) There is a business, service, or professional relationship between the plaintiff and defendant or the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons:

(A) Physician, psychotherapist, or dentist. For purposes of this section, “psychotherapist” has the same meaning as set forth in paragraph (1) of subdivision (c) of Section 728 of the Business and Professions Code.

(B) Attorney, holder of a master’s degree in social work, real estate agent, real estate appraiser, investor, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, or escrow loan officer.

(C) Executor, trustee, or administrator.

(D) Landlord or property manager.

(E) Teacher.

(F) Elected official.

(G) Lobbyist.

(H) Director or producer.

(I) A relationship that is substantially similar to any of the above.

(2) The defendant has 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, that were unwelcome and pervasive or severe.

(3) 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 the conduct described in paragraph (2).

(b) In an action pursuant to this section, damages shall be awarded as provided by subdivision (b) of Section 52.

(c) Nothing in this section shall be construed to limit application of any other remedies or rights provided under the law.

(d) The definition of sexual harassment and the standards for determining liability set forth in this section shall be limited to determining liability only with regard to a cause of action brought under this section.

(Amended by Stats. 2018, Ch. 951, Sec. 1. (SB 224) Effective January 1, 2019.)

The following is select wording from the Opinion in Thomas v. Regents of the University of California pertaining to the sufficiency of allegations at least at the pleading stage (and to survive a demurrer) under Cal. Civ. Code §51.9 upon sufficient allegations, and if those allegations can be made, that Thomas would not have been treated in the same manner if she were a man (note: I added the yellow highlight, and, as stated above, you do need to read and understand the Court’s entire, complete Opinion, and then apply that understanding to your particular unique factual situation).

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            “Renee Thomas was recruited to play on the women’s soccer team at the University of California, Berkeley (UCB), played on the team during her freshman year and, in the spring of that year, was released from the team. She sued UCB, the head coach of the women’s soccer team [Neil McGuire], and the Director of Athletics (collectively, defendants), first in federal court and then in state court. The present appeal is from the judgment in favor of the defendants entered after the trial court sustained demurrers to all Thomas’s causes of action without leave to amend. As we will explain, we conclude Thomas sufficiently pleaded a cause of action for sexual harassment in violation of Civil Code section 51.9 against the head coach [Neil McGuire] and UCB and should have been granted leave to amend her complaint to clarify the statutory basis of this claim.”

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            “Civil Code section 51.9 is not part of the Unruh Act; it is a separate civil rights statute. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1044, fn. 1 (Hughes); Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1487, fn. 5.)⁴”

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            “In the employment context, “ ‘[t]he plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. [Citation.] [¶] The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.’ ” (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557, quoting Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609-610 (Fisher).)

            “The plaintiff must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire. (Singleton v. United States Gypsum Co. [supra,] 140 Cal.App.4th [at p.] 1564; see also Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80 [same principle applies under title VII].)” (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 114 (Pantoja).) “Sexual harassment does not necessarily involve sexual conduct. It need not have anything to do with lewd acts, double entendres or sexual advances. Sexual harassment may involve conduct, whether blatant or subtle, that discriminates against a person solely because of that person’s sex.” (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 345 (Accardi).) “For example, a female plaintiff can prevail by showing that the harassment was because of the defendant’s bias against women” or that an employer created a hostile work environment “because the employer feels important or powerful while humiliating women.” (Pantoja, at pp. 114-115.) Harassment “because of sex” may be shown where “an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men.” (E.E.O.C. v. National Educ. Ass’n, Alaska (9th Cir. 2005) 422 F.3d 840, 845 (E.E.O.C.).) To plead a cause of action for sexual harassment in the form of a hostile environment, “it is ‘only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff “had been a man she would not have been treated in the same manner.”’ [Citation.]” (Tomkins v. Public Serv. Elec. & Gas Co. (3d Cir.1977) 568 F.2d 1044, 1047, fn. 4.)” (Accardi, at p. 348.)”

* * * * *

“3.  Thomas Sufficiently Pleaded Sexual Harassment by McGuire.

            The elements of a cause of action for sexual harassment under Civil Code section 51.9 are 1) a “business, service, or professional relationship between the plaintiff and defendant”; 2) 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”; 3) the defendant’s conduct was “unwelcome and pervasive or severe”; and 4) 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 the [defendant’s] conduct.” (Civ. Code, § 51.9; CACI No. 3065.)

            The parties dispute whether Thomas sufficiently alleged conduct of the required nature and pervasiveness or severity. In our view, she did.”

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            “As earlier explained, Thomas claims sexual harassment in the form of a hostile environment—that McGuire, in the words of Civil Code section 51.9, “engaged in . . . verbal, visual, or physical conduct . . . of a hostile nature based on gender” that was “unwelcome and pervasive or severe.” She alleged that McGuire “berated” the players in front of the team “to make an example out of them and strike fear in the witnessing athletes”; called the players names, cursed at them and “degraded them with personal insults”; “tormented them psychologically”; “punished them with grueling workouts”; and was described to the UCB athletic administration as “creating a culture of fear and intimidation.” This included making “unwelcome and inappropriate comments about players’ bodies,” “call[ing] out the physique of one player in front of the team and call[ing] her weak” and “berat[ing] a young woman for having what he perceived as a hickey on her neck.” Thomas alleged that his conduct made her feel she had to be “absolutely perfect” and caused her and her teammates to “tread extremely lightly around [McGuire]” to “avoid drawing his aggression or being retaliated against.” Team members and their parents complained to the athletics department and to the UCB Chancellor about the “abuse.”

            These allegations unquestionably describe pervasive bullying behavior toward the young women on the soccer team that created a hostile environment. The defendants argue (and the trial court concluded) that they do not allege pervasive sexual harassment because the alleged conduct and comments were not of a sexual or hostile gender-based nature. We disagree. As we have explained, “there is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures.” (E.E.O.C., supra, 422 F.3d at p. 844.) Even with no express reference to sex or gender, harassment creating a hostile environment may constitute sexual harassment if the plaintiff can prove “ ‘ “she would not have been treated in the same manner” ’ ” if she were a man. (Accardi, supra, 17 Cal.App.4th at p. 348.)”

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That is all for now in this post. Obviously, these are complicated issues of law and fact that require considerable evaluation in the context of your situation or any possible situation. Thomas is not the first Opinion that has expressed these holdings, but Thomas does so in a manner that is perhaps more relatable.

The following is a complete copy of the Opinion in Renee Thomas v. Regents of the University of California, et al.

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David Tate, Esq. (and inactive CPA)

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