What is Failure to Prevent Discrimination and Harassment?

Failure to take all reasonable steps necessary to prevent discrimination and harassment is a “separate actionable tort enforceable upon the establishment of the usual tort elements of duty of care, breach of duty (a negligent act or omission), causation, and damages.” Dickson v. Burke Williams, Inc. (2015) 234 Cal. App. 4th 1307, 1313.

The Fair Employment and Housing Act (“FEHA”) makes it unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Govt. Code § 12940(k); Scotch v. Art Inst. of California-Orange Cnty., Inc. (2009) 173 Cal.App.4th 986, 1003 (citing the old Govt. Code § 12940(h)). Reasonable steps necessary to prevent discrimination include prompt investigation of discrimination claims, establishment and promulgation of antidiscrimination policies, and implementation of effective procedures to handle discrimination complaints. Cal. Fair Employment and Housing Commission v. Gemini Alum. Corp. (2004) 122 Cal.App.4th 1004, 1024-1025.

A claim of failure to prevent FEHA violations must be predicated on an actionable claim of those violations, such as discrimination or harassment. Trujillo v. N. Cty. Transit Dist. (1998) 63 Cal. App. 4th 280, 289; Scotch v. Art Institute of Cal. (2009) 173 Cal.App.4th 986, 1021 (“the ‘Failure to Maintain’ cause of action can survive only if a ‘Retaliation’ cause of action survives.”). “There’s no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn’t happen, for not having a policy to prevent discrimination when no discrimination occurred. Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.” Trujillo v. N. Cty. Transit Dist. (1998) 63 Cal.App.4th 280, 289 (citations and quotation omitted).

The elements of a claim for failure to prevent harassment, discrimination, or retaliation. To succeed on this claim, plaintiff must prove that:

  1. she was an employee of defendant;
  2. she was subjected to harassment, discrimination, or retaliation in the course of employment;
  3. defendant failed to take all reasonable steps to prevent the harassment, discrimination, or retaliation;
  4. she was harmed; and
  5. defendant’s failure to take preventative steps was a substantial factor in causing the harm

CACI No. 2527; see also BAJI 12.11 (the elements of a cause of action for Failure to Prevent Discrimination are: (i) Plaintiff was subjected to discrimination; (ii) Defendant failed to take all reasonable steps to prevent discrimination; and (iii) This failure caused plaintiff to suffer injury, damage, loss or harm); Lelaind v. City and County of San Francisco (N.D. Cal. 2008) 576 F.Supp.2d 1079, 1103.

Useful Resources for Failure to Prevent Discrimination and Harassment in Violation of FEHA

Rulings on Failure to Prevent Discrimination and Harassment in Violation of FEHA

1-25 of 10000 results

HECTOR ALMAZAN VS COUNTY OF LOS ANGELES

Stratton reflects that the meet and confer requirement was satisfied as required by CCP § 430.41 Analysis 1, First Cause of Action (Discrimination In Violation of FEHA); Second Cause of Action (Failure To Prevent Discrimination In Violation of FEHA); Third Cause of Action (Retaliation In Violation of FEHA); Fourth Cause of Action (Failure To Prevent Retaliation In Violation of FEHA); Fifth Cause of Action (Harassment In Violation of FEHA); Sixth Cause of Action (Failure To Prevent Harassment In Violation of

  • Hearing

    Sep 06, 2019

  • Type

    Employment

  • Sub Type

    Discrimination/Harass

GODREY RUFFIN VS U S TELEPACIFIC CORP ET AL

Ruffin asserts causes of action for (1) FEHA disability discrimination, (2) FEHA race discrimination, (3) FEHA age discrimination, (4) FEHA retaliation, (5) FEHA failure to engage in the interactive process, (6) FEHA failure to accommodate, (7) FEHA failure to prevent, (8) whistleblower retaliation, and (9) wrongful termination in violation of public policy. Plaintiff moves to consolidate this action with Elizabeth Handy v.

  • Hearing

    Aug 14, 2017

KYSA PAUL VS TARGET CORPORATION, A MINNESOTA CORPORATION, ET AL.

FEHA; (7) failure to provide reasonable accommodation in violation of FEHA; (8) failure to engage in the interactive process; (9) retaliation for engaging in a protected activity in violation of FEHA; (10) retaliation for taking medical leave in violation of the California Family Rights Act (CFRA); (11) failure to prevent harassment, discrimination, and retaliation in violation of FEHA; (12) wrongful termination of employment in violation of public policy; (13) breach of implied-in-fact contract not to terminate

  • Hearing

    Feb 03, 2020

  • Type

    Employment

  • Sub Type

    Wrongful Term

MELISSA MEDINA VS CASA ESCOBAR MALIBU BEACH LLC ET AL

BACKGROUND: Plaintiff commenced this action on October 3, 2018 against Casa Escobar Malibu Beach, LLC and Daniel Arias for (1) sexual harassment in violation of FEHA; (2) sexual assault and battery; (3) failure to prevent sexual harassment, sexual assault, and sexual battery in violation of FEHA; (4) discrimination on the basis of disability in violation of FEHA; (5) discrimination on the basis of gender in violation of FEHA; (6) retaliation for complaining of discrimination on the basis of disability in violation

  • Hearing

    Jun 28, 2019

  • Type

    Employment

  • Sub Type

    Wrongful Term

JANE DOE VS DALE POE REAL ESTATE, INC., ET AL.

Plaintiff filed a First Amended Complaint (“FAC”) on January 2, 2019 alleging six causes of action including: (1) discrimination in violation of FEHA; (2) harassment in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to prevent discrimination, harassment, and retaliation in violation of FEHA; (5) wrongful constructive termination in violation of FEHA; and (6) declaratory judgment.

  • Hearing

    Mar 20, 2019

  • Type

    Employment

  • Sub Type

    Other Employment

MELISSA MEDINA VS CASA ESCOBAR MALIBU BEACH LLC ET AL

BACKGROUND: Plaintiff commenced this action on October 3, 2018 against Casa Escobar Malibu Beach, LLC and Daniel Arias for (1) sexual harassment in violation of FEHA; (2) sexual assault and battery; (3) failure to prevent sexual harassment, sexual assault, and sexual battery in violation of FEHA; (4) discrimination on the basis of disability in violation of FEHA; (5) discrimination on the basis of gender in violation of FEHA; (6) retaliation for complaining of discrimination on the basis of disability in violation

  • Hearing

    Sep 11, 2019

  • Type

    Employment

  • Sub Type

    Wrongful Term

ASHENAFI BENTI VS FOX RENT A CAR INC

Defendant seems to argue that the failure to prevent claim fails because there is no underlying discrimination claim. The FEHA makes it unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Scotch v. Art Inst. of California-Orange Cnty., Inc. (2009) 173 Cal.App.4th 986, 1003 (citing Govt. Code § 12940(h)).

  • Hearing

    Nov 28, 2017

  • Type

    Employment

  • Sub Type

    Wrongful Term

MELISSA MEDINA VS CASA ESCOBAR MALIBU BEACH LLC ET AL

REQUEST FOR ENTRY OF DEFAULT JUDGMENT BACKGROUND: Plaintiff commenced this action on October 3, 2018 against Casa Escobar Malibu Beach, LLC and Daniel Arias for (1) sexual harassment in violation of FEHA; (2) sexual assault and battery; (3) failure to prevent sexual harassment, sexual assault, and sexual battery in violation of FEHA; (4) discrimination on the basis of disability in violation of FEHA; (5) discrimination on the basis of gender in violation of FEHA; (6) retaliation for complaining of discrimination

  • Hearing

    Jul 30, 2019

  • Type

    Employment

  • Sub Type

    Wrongful Term

JOEL REYNOZO VS GH TRANSPORTATION INC

The complaint alleges causes of action for (1) wrongful termination in violation of public policy, (2) FEHA disability discrimination, (3) FEHA failure to accommodate, (4) FEHA failure to engage in the interactive process, (5) FEHA retaliation, (6) FEHA failure to prevent discrimination and retaliation, (7) intentional infliction of emotional distress, (8) violation of wage and hour laws—unpaid overtime wages, (9) violation of wage and hour laws—waiting time penalties, (10) failure to provide accurate wage statements

  • Hearing

    Oct 25, 2017

  • Type

    Employment

  • Sub Type

    Wrongful Term

COTA VS. SOUTH COAST OUTPATIENT SURGERY CENTER

As such, summary adjudication is GRANTED as to the 7th cause of action for retaliation. Issue No. 7: 8th Cause of Action for failure to maintain an environment free from discrimination and retaliation in violation of FEHA.

  • Hearing

    Sep 10, 2020

AGUSTIN SANCHEZ VS APRO LLC, ET AL.

On May 29, 2019, Plaintiff filed a Complaint against Defendants alleging causes of action for: Discrimination in Violation of the FEHA; Failure to Accommodate; Failure to Engage in the Interactive Process; Harassment in Violation of the FEHA; Retaliation in Violation of the FEHA; Failure to Investigate and Prevent Discrimination in Violation of the FEHA; Wrongful Termination in Violation of the FEHA; Wrongful Termination in Violation of Public Policy; Violation of California Labor Code §230(b); Failure

  • Hearing

    Feb 05, 2020

  • Type

    Employment

  • Sub Type

    Wrongful Term

WASSMER VS COUNTY OF RIVERSIDE

Here, without sufficiently pleading the underlying claims for harassment or retaliation in violation of FEHA, Plaintiff cannot state a claim for failure to prevent such unlawful conduct. However, in the previous demurrer to the FAC, the Court overruled the demurrer in part to the extent Plaintiff alleged a claim for failure to prevent discrimination and sustained the demurrer in part to the extent it alleged a failure to prevent retaliation and harassment.

  • Hearing

    Jan 20, 2021

WOLSIEFFER VS CITY OF RANCHO MIRAGE HEARING RE: DEMURRER TO COMPLAINT OF DENISE WOLSIEFFER BY CITY OF RANCHO MIRAGE

Overruled as to the 1st cause of action (retaliation in violation of FEHA) and 6th cause of action (failure to prevent discrimination and retaliation in violation of FEHA); sustained with 20 days leave to amend as to all other causes of action. To withstand demurrer, a complaint “need only allege facts sufficient to state a cause of action, each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. (C.A. v. William S.

  • Hearing

    Jun 29, 2020

MARY ORLEANS V CONEJO VALLEY UNIFIED

Sufficient facts are pled to state each of these causes of action. There is no demurrer to count 6 (retaliation in violation of FEHA). 1. The 1st cause of action of the SAC sufficiently pleads "stress disability" discrimination.

  • Hearing

    Jan 13, 2012

  • Type

    Employment

  • Sub Type

    Wrongful Term

GEOFFREY GEE VS INSPERITY, ET AL.

His First Amended Complaint (“FAC”) alleges: (1) Discrimination in Violation of the FEHA; (2) Hostile Work Environment Harassment in Violation of the FEHA; (3) Retaliation in Violation of the FEHA; (4) Failure to Provide Reasonable Accommodation in Violation of FEHA; (5) Failure to Engage in the interactive Process in Violation of FEHA; (6) Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA; (7) Defamation; (8) Breach of Express Oral Contract Not to Terminate Employment

  • Hearing

    Oct 20, 2020

  • Type

    Employment

  • Sub Type

    Wrongful Term

MARTHA QUIROZ VS I A T S E LOCAL 44 ET AL

The Complaint alleges the following six causes of action: (1) sexual harassment in violation of the Fair Employment and Housing Act (“FEHA”); (2) discrimination in violation of the FEHA; (3) retaliation in violation of the FEHA; (4) failure to take reasonable steps to prevent FEHA violations; (5) wrongful termination in violation of public policy; and (6) intentional infliction of emotional distress (“IIED”). Defendants now demur to each cause of action of the Complaint.

  • Hearing

    Jun 16, 2017

  • Type

    Employment

  • Sub Type

    Wrongful Term

OLIVIA BARROWS, AN INDIVIDUAL, ET AL. VS JAMES IVEY,AN INDIVIDUAL, ET AL.

On March 4, 2019, Plaintiff Discrimination Based on Sex/Gender – Disparate Treatment, Harassment Based on Sex/Gender, Retaliation for Opposing Violation of FEHA, Whistleblower Retaliation, Association Discrimination, Failure to Prevent and Stop Harassment, Discrimination and Retaliation, and Wrongful Constructive Termination in Violation of Public Policies.

  • Hearing

    Jan 11, 2021

  • Type

    Employment

  • Sub Type

    Wrongful Term

JORDAN GOODSTEIN, ET AL. VS FOUR SEASONS HEALTHCARE & WELLNESS CENTER, LP, ET AL.

Plaintiff filed a complaint against Defendant alleging causes of action for: (1) discrimination in violation of FEHA; (2) failure to prevent discrimination (FEHA); (3) failure to engage in a timely good faith interactive process in violation of FEHA; (4) failure to provide reasonable accommodation; (5) retaliation in violation of FEHA; (6) harassment in violation of FEHA; and (7) failure to prevent harassment in violation of FEHA.

  • Hearing

    Jun 07, 2019

  • Type

    Personal Injury/ Tort

  • Sub Type

    other

GURDIP KAUR V. FOSTER POULTRY FARMS

Explanation: In the case at bar, plaintiff alleges six causes of action: (1) discrimination on the basis of race/nationality and disability in violation of the FEHA; (2) failure to provide reasonable accommodations [FEHA]; (3) failure to engage in interactive process [FEHA]; (4) failure to take all reasonable measure to prevent discrimination [FEHA]; (5) retaliation for asserting FEHA rights; and (6) retaliation in violation of Labor Code section 1102.5.

  • Hearing

    Mar 18, 2020

BETTY HEWITT VS EDGE ROOFING, INC., ET AL.

BACKGROUND: On March 2, 2020, Plaintiff Betty Hewitt commenced this action against Defendants Edge Roofing, Inc. and Garlan Powell for (1) age discrimination in violation of the FEHA; (2) gender discrimination in violation of the FEHA; (3) retaliation for opposing practices forbidden by the FEHA; (4) hostile work environment in violation of the FEHA; (5) failure to do everything reasonably necessary to prevent discrimination, harassment and retaliation from occurring in violation of the FEHA; (6) wrongful termination

  • Hearing

    Sep 08, 2020

  • Type

    Employment

  • Sub Type

    Wrongful Term

CARMEN ARRIAGA VS WILLIAM S HART UNION HIGH SCHOOL DISTRICT

Plaintiff’s Complaint asserted causes of action for (1) wrongful termination in violation of public policy, (2) CFRA violation, (3) CFRA interference, (4) FEHA disability discrimination, (5) FEHA failure to accommodate, (6) FEHA failure to engage in the interactive process, (7) FEHA failure to prevent, (8) FEHA retaliation, and (9) breach of implied covenant of good faith and fair dealing. On 8/18/16, Plaintiff filed a First Amended Complaint.

  • Hearing

    Nov 03, 2016

  • Type

    Employment

  • Sub Type

    Wrongful Term

MICHAEL AMBROSIO VS FARMERS INSURANCE GROUP INC ET AL

The operative First Amended Complaint (“FAC”) asserts causes of action for discrimination in violation of FEHA (based on age, gender, and race), retaliation in violation of FEHA, failure to prevent discrimination in violation of FEHA, and discrimination against public policy (based on age, gender, and race) stemming from his alleged demotion from a Special Investigations Unit Zone Manager. FIE and defendant Farmers Group, Inc.

  • Hearing

    Apr 26, 2019

  • Type

    Employment

  • Sub Type

    Wrongful Term

ANTHONY MELCHIONNE VS FARMERS INSURANCE GROUP INC ET AL

Failure to Prevent Discrimination in Violation of FEHA Failure to take all reasonable steps necessary to prevent discrimination and harassment is a “separate actionable tort enforceable upon the establishment of the usual tort elements of duty of care, breach of duty (a negligent act or omission), causation, and damages.” (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313.)

  • Hearing

    Aug 27, 2019

  • Type

    Employment

  • Sub Type

    Wrongful Term

MATTINGLY-VIERS VS. COAST COMMUNITY COLLEGE DISTRICT

Defendants’ motion for summary adjudication is DENIED as to Plaintiff’ first cause of action for disability discrimination for failure to accommodate, second cause of action for disability discrimination for failure to engage in the interactive process, third cause of action for disability discrimination in violation of FEHA, fourth cause of action for retaliation in violation of FEHA, seventh cause of action for failure to prevent discrimination and/or retaliation in violation of FEHA, and eighth cause of action

  • Hearing

    Oct 01, 2017

EDWARD MAYO, AN INDIVIDUAL VS TK1SC, A CALIFORNIA CORPORATION

Second Cause of Action for Failure to Prevent Discrimination in Violation of the FEHA (Cal. Gov’t Code § 12940(k)) Section 12940(k) provides that “[i]t is an unlawful employment practice . . . [f]or an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”

  • Hearing

    Nov 15, 2019

  • Type

    Employment

  • Sub Type

    Wrongful Term

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