Former California Highway Patrol Officer Can Sue for Sexual-Orientation Bias

 

By Joanne Deschenaux March 27, 2020
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California Highway Patrol Car

​A former law enforcement officer can proceed with his suit against the California Highway Patrol alleging discrimination because of his sexual orientation, a California appeals court ruled. The court reversed a trial court decision that dismissed the case after finding that the officer had voluntarily left his job. The officer should be allowed to prove that workplace conditions were so intolerable that he was forced to resign, according to the appeals court.

The officer, who was openly gay, began his employment at the patrol in 1996. During his nearly 20-year career, he alleged, other officers subjected him to derogatory, homophobic comments, singled him out for pranks, repeatedly defaced his mailbox and refused to provide him with backup assistance during enforcement stops in the field.

As a result, the officer said he feared for his life during enforcement stops; experienced headaches, muscle pain, stomach issues, anxiety and stress; and became suicidal by early 2015. In January 2015, he went on medical leave and filed a workers' compensation claim due to on-the-job stress. His workers' compensation claim was resolved in his favor on Oct. 27, 2015. He took industrial disability retirement on Feb. 29, 2016, ending his employment with the patrol.

The officer sued the patrol for sexual-orientation discrimination, among other claims. The lower court dismissed the claim, rejecting the officer's constructive discharge claim—through which he claimed that he had no choice but to resign. The officer appealed and the appellate court reversed, ruling that the discrimination claim could go forward.

Chance to Prove Constructive Discharge

The appeals court first noted that to establish constructive discharge, an employee must show that working conditions were so intolerable or aggravated that a reasonable employee would be forced to resign and that the employer either created or knowingly permitted those conditions.

Further, the court said, to be intolerable, working conditions must be "unusually aggravated" or amount to a "continuous pattern." Each individual incident need not be sufficient standing alone to force a resignation. Rather, the accumulation of discriminatory treatment over time can amount to intolerable working conditions.

The officer had raised a triable issue as to whether his working conditions were so intolerable that a reasonable employee would have resigned, the court concluded. Unlike the other officers, he alleged, he was routinely forced to respond to high-risk enforcement and accident scenes on his own, placing his life in danger. 

These denials of backup assistance happened daily and were at least in some instances due to his sexual orientation. His captain testified that the denial of backup could put an officer in a "very precarious" situation, reinforcing that a reasonable officer would have found the conditions objectively intolerable, the court said.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

The employer claimed that the officer's working conditions could not have been intolerable if he endured them for years. But the officer transferred to a different office because he was hoping to get away from the discrimination and harassment he suffered in his previous post, and once he was transferred, he sought resolution by repeatedly complaining to his superiors.

Viewed as a whole, the court said, the record could support a conclusion that the officer's working conditions became objectively intolerable over time and would have forced a reasonable employee to resign.

The court further concluded that there was evidence to support a finding that the patrol knowingly permitted the intolerable conditions. The officer's superiors knew of his complaints and that he believed he faced these conditions due to sexual-orientation discrimination. While it was not the only possible conclusion to draw, the court said, there was enough evidence for a reasonable juror to conclude that the patrol knowingly permitted these conditions and should have known that a reasonable employee in the officer's position would resign.

Brome v. California Highway Patrol, Calif. Ct. App., No. A154612 (Jan. 28, 2020).

Professional Pointer: The test for constructive discharge is whether a reasonable person faced with the alleged intolerable employer actions or conditions of employment would have no practical alternative except to quit. It's important to remember that the test imposes an objective standard and is not based on the employee's subjective point of view.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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