Employers’ Non-Action Resulted in $1.6 Million Awarded in Harassment Claim

A Los Angeles jury awarded a black former UCLA phlebotomist nearly $1.6 million in damages for being subjected to racial harassment by co-workers. Birden v. The Regents of the University of California, No. BC6681389 (Los Angeles Superior Court May 30, 2017).

Birden, who worked at UCLA as a per diem phlebotomist for approximately one year, alleged that she was subjected to racial slurs and disparaging remarks by Latino co-workers who referred to her as “lazy,” a “dark woman,” and used the “N” word in her presence. Birden claims that she reported the harassment to her supervisors but the school did not take action.

In his opening statement at trial, the attorney for the UC Board of Regents described one of Birden’s co-workers as a “good guy,” claimed “[h]e wasn’t doing it to try to offend somebody” with the use of the “N” word and argued that Birden was fired because of a clear pattern of performance issues. Birden’s counsel argued that Birden had no disciplinary history and offered testimony of Birden’s strong work ethic.

Ultimately, the jury agreed that Birden was subjected to severe and pervasive harassment by her co-workers due to her race and awarded Birden (1) $500,000 for past emotional distress and mental harm, (2) $800,000 for future emotional distress and mental harm, (3) more than $190,000 for past economic loss and (4) more than $86,000 for future economic loss. However, the jury did reject Birden’s claim that she was terminated because of her race.

What Lessons Can Be Learned From This Case?

Hindsight is always 20/20, single-plaintiff verdicts like this one remind employers to focus on cultivating a respectful and inclusive work culture for employees at all levels because non-supervisory employees have the power to do as much damage as management.

How do you focus on cultivating a respectful work culture? Here are some tips:

  • There is no such thing as too much training, but the training must be effective. We find the most effective training focuses on work culture instead of formulaic legal tests (e.g., what constitutes severe or pervasive). If you find yourself analyzing whether a conduct is severe or pervasive, it is inevitably too late.
  • Anti-harassment policy – having one is never the problem (you should have one). The problem arises when employees either do not receive the policy or forget it exists because it is buried in a handbook. Typically, it is the latter. Employers can change this by reminding employees of anti-harassment policies on an annual basis. This reminder also provides employers with the opportunity to re-emphasize that the company does not tolerate harassment and employees should not be afraid to raise or report concerns.
To learn more, join partners Barbara Hoey and Mark Konkel on a Lexology hosted webinar, entitled “The New Sexual Revolution: Radical Changes to US Harassment Laws” on September 24, 2019. For more information and to register, click here.