64 Cal.App.5th 138
Cal. Ct. App.2021Background
- Plaintiff Robert Smith, an African American Jiffy Lube employee, attended a Castrol product presentation led by Castrol employee Gus Pumarol; ~50 Jiffy Lube employees (including Smith’s supervisors) attended.
- During the presentation Pumarol made three comments to Smith that Smith construed as racially offensive ("You sound like Barry White," a "banana hands" remark, and "I can’t see your eyes"); non‑Black attendees laughed each time.
- The next day a coworker replaced Smith’s name on the schedule with the nickname "Banana Hands." Smith complained to supervisors who minimized the incident and told him to let it go; Smith suffered subsequent physical and mental health problems.
- Smith sued BP (Castrol) and Pumarol alleging FEHA aiding-and-abetting harassment, Unruh Act race discrimination, and IIED against Pumarol; the trial court sustained demurrers without leave to amend and entered judgment for defendants.
- On appeal the Court of Appeal affirmed dismissal of the FEHA aiding-and-abetting claim but reversed the sustained demurrers as to IIED and the Unruh Act claim and remanded those claims to proceed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FEHA aiding-and-abetting liability for BP/Pumarol | Smith alleged BP/Pumarol aided Jiffy Lube’s racial harassment and thus are liable under Gov. Code §12940(i) | BP/Pumarol lacked employer relationship, and FAC fails to allege knowledge of FEHA violations or substantial assistance/concerted action | Affirmed dismissal: FAC lacked allegations that BP/Pumarol knew of Jiffy Lube’s FEHA violations or gave substantial assistance; no leave to amend shown |
| IIED against Pumarol | Pumarol’s repeated racial comments in front of supervisors and coworkers were extreme/outrageous and caused severe emotional and physical harm | Mere insulting language; not extreme as a matter of law | Reversed dismissal: allegations plausibly state extreme, outrageous conduct and causation, so IIED claim may proceed |
| Unruh Act (race discrimination) against BP/Pumarol | Pumarol acted as Castrol’s representative providing services to Jiffy Lube employees (clients/customers); racist verbal treatment is unequal treatment under Unruh | Presentation was a private, non‑public training; Unruh does not reach private harassment or verbal conduct alone | Reversed dismissal: court held Unruh covers discriminatory, unequal verbal treatment by a business establishment’s representative toward its patrons even if the event was not open to the public |
Key Cases Cited
- Alch v. Superior Court, 122 Cal.App.4th 339 (Cal. Ct. App. 2004) (third‑party entities can be liable for aiding and abetting employer FEHA violations if they knew and substantially assisted)
- Janken v. GM Hughes Electronics, 46 Cal.App.4th 55 (Cal. Ct. App. 1996) (aiding and abetting doctrine is closely allied with conspiracy; requires concerted wrongful action)
- Fiol v. Doellstedt, 50 Cal.App.4th 1318 (Cal. Ct. App. 1996) (FEHA lacks statutory definition of aiding and abetting; courts construe elements)
- Christensen v. Superior Court, 54 Cal.3d 868 (Cal. 1991) (elements of IIED and legal standards)
- Alcorn v. Anbro Engineering, 2 Cal.3d 493 (Cal. 1970) (racial epithets plus aggravating circumstances may support IIED)
- Agarwal v. Johnson, 25 Cal.3d 932 (Cal. 1979) (outrageous conduct test and aggravating factors for IIED)
- Koire v. Metro Car Wash, 40 Cal.3d 24 (Cal. 1985) (Unruh Act protects unequal treatment by business establishments even without denial of service)
- White v. Square, Inc., 7 Cal.5th 1019 (Cal. 2019) (Unruh Act’s broad remedial purpose to deter discriminatory practices by businesses)
- Isbister v. Boys’ Club of Santa Cruz, 40 Cal.3d 73 (Cal. 1985) (Unruh Act confines liability to discrimination by business establishments in furnishing goods/services)
- People v. McKale, 25 Cal.3d 626 (Cal. 1979) (pattern of discriminatory conduct, including abusive language, is unlawful under Unruh)