Judgment In Sex Harassment Suit Against Employer With Fewer Than 5 Employees Upheld By Appellate Court

Thomas M. Lee

On June 12, 2014, the Fourth District Court of Appeal ruled that an employee who was constructively discharged for complaining about sexual harassment can maintain a common law wrongful termination action, even if the employer has a workforce of fewer than five and is immune from most claims under the Fair Employment and Housing Act (FEHA).

The Court affirmed a $60,000 judgment against Konad USA Distribution, Inc. and its owner Dong Whang. The Plaintiff, a Korean woman in her mid 20’s alleged that she was forced to quit her job as a account manager because she could no longer tolerate the hostile work environment caused by the owner’s harassing questions about her sex life, statements criticizing other women’s breasts and buttocks, daily explicit comments, and unwanted touching.

The Plaintiff filed her complaint with the Department of Fair Employment and Housing and obtained a right-to-sue letter. Following a nonjury trial, the trial court ruled in her favor and awarded $60,000.00 in damages. The Defendants filed an appeal thereafter.

On appeal, the defense argued, among other things, that the Plaintiff failed to prove that the employer had at least five employees during the period in question, which is a prerequisite to recovery under FEHA. However, the Court of Appeal found that the size of the defendant’s workforce was irrelevant, explaining that FEHA’s definition of “employer” makes clear that the five-employee minimum does not apply to claims of harassment based on sex or some other prohibited classification. “In sum, a wrongful termination against public policy common law tort based on sexual harassment can be brought against an employer of any size,” the Court wrote.

The Court also rejected the defense’s other arguments based on trial procedure, however, the Court found that those arguments failed since the defense essentially forfeited their rights by not timely objecting or requesting dismissal at the appropriate time.

The case is Kim v. Konad USA Distribution, Inc., G048443.

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