LAI v. PRUDENTIAL INSURANCE COMPANY OF AMERICA

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Court of Appeal, Second District, Division 1, California.

Justine LAI & Elvira Viernes, Plaintiffs and Appellants, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA et al., Defendants and Respondents.

No. B103924.

Decided: March 17, 1998

Barboza & Associates, Carla D. Barboza, Los Angeles, for Plaintiffs and Appellants. Seyfarth, Shaw, Fairweather & Geraldson, Kenwood C. Youmans and Diana Tabacopoulos, Los Angeles, for Defendants and Respondents. Equal Rights Advocates, Rose B. Fua, Berkeley, and Elia Gallardo, Fair Employment Housing Commission, Steven C. Owyang and Prudence K. Poppink, San Francisco, as Amici Curiae on behalf of Plaintiffs and Appellants. California Chamber of Commerce, Fred L. Main, Sacramento, California Employment Law Council and Paul Grossman as Amici Curiae on behalf of Defendant and Respondent, Prudential Insurance Company of America.

INTRODUCTION

Appellants appeal from the trial court's grant of summary judgment on April 3, 1996, in favor of Prudential Insurance Company of America, on their complaint for sexual harassment in employment in violation of Government Code section 12900 et seq.   The judgment was entered on April 26, 1996.

FACTUAL AND PROCEDURAL BACKGROUND

On November 30, 1990, Justine Lai and Elvira Viernes filed their complaint against Prudential Insurance Company of America (hereinafter Prudential) and Chiman Dialani, alleging unlawful sexual harassment under the California Fair Employment and Housing Act (FEHA), coupled with several other related tort claims.   Prudential answered the complaint on January 9, 1991, denying all of the material allegations.   In March of 1996, Prudential filed a motion for summary judgment or in the alternative summary adjudication.   The appellants dismissed their related tort claims and opposed the motion on the FEHA cause of action.   On April 3, 1996, the trial court granted Prudential's motion for summary judgment and made certain findings.   The first was that the cause of action for violation of FEHA (Gov.Code, § 12900 et seq.) lacks merit on the ground that the individual alleged to have engaged in the harassment of appellants is a coemployee and neither an agent nor a supervisor of Prudential.   Prudential makes the assertion based upon that finding that its prompt and appropriate corrective action bars liability against itself.   The second finding was that punitive damages could not be awarded against Prudential because the facts are undisputed that Mr. Dialani, the individual alleged to have engaged in an act of oppression, fraud, or malice was not an officer or director or managing agent of Prudential and Prudential did not ratify any of the alleged acts of oppression, fraud, or malice.   The judgment was entered on April 3, 1996.   The appellants timely filed their notice of appeal on June 21, 1996.

Appellants were employed as insurance sales agents by Prudential.   Chiman Dialani was the sales manager of the office in Alhambra, where they worked.   Prudential concedes that Mr. Dialani forced Mrs. Lai to have sexual intercourse with and orally copulate him during working hours and on company premises.   He also forced Mrs. Viernes to masturbate him and he grabbed her and fondled her breasts and other intimate parts of her body and requested sexual favors.   The specifics of this alleged misconduct were contested in the trial court but are not at issue in this appeal.   Appellants first made their complaint known to Prudential regarding the conduct of Mr. Dialani on June 18, 1990.   Mr. Dialani denied that he had had sexual contact with any employee.   Prudential thereafter investigated the charge and concluded that Mr. Dialani had not been forthright, that he did in fact have sexual contact with appellants and other Prudential employees both at and outside of the work place.   Mr. Dialani was terminated on June 25, 1990.   Subsequent to his “termination” he was allowed to resign in lieu of termination for “personal reasons.”

The appellants presented evidence to establish Mr. Dialani's work status vis-à-vis Prudential.   Mr. Dialani was the only manager on site at Prudential's Alhambra detached office.   He supervised, trained and generally assisted sales agents in performance of their duties.   He oversaw the performance of sales agents.   The 17 sales agents in the office, including appellants, reported to Mr. Dialani.   In addition, he assisted Prudential in general management and in personnel administration.   He had authority to recommend the hiring, promotion, termination and transfer of sales agents on his staff.   His employment contract with Prudential specifically provided that as a sales manager Mr. Dialani was to supervise and direct the sales agents on his staff.   Appellants were required by Mr. Dialani to report to the Alhambra office on a daily basis.   They had to submit their requests for sick leave or vacation time directly to Mr. Dialani.   He required the sales agents to report to work on Tuesdays and Fridays before 8:30 a.m. to report on their business activities, and required the sales agents to attend a weekly staff meeting on Friday mornings.   He also had the power to censure employees.

Prudential, to countervail the evidentiary offerings of appellants, presented their evidence to establish that Mr. Dialani was merely a coemployee who had no actual supervisorial authority over the plaintiffs or any other employee.   He did not have the authority to hire, to promote, to terminate, to demote or otherwise discipline the appellants.   He had no authority to set their compensation or to transfer them.   He had no role in establishing corporate policy at any level.   Mr. Dialani's duties as a sales manager included only training sales agents, working with them in their sales efforts and reporting their progress to his supervisors in management.

The trial court made a finding that the facts relating to Mr. Dialani's supervisory status as stated herein were undisputed and concluded that, as a matter of law, Prudential could not be held liable for sexual harassment because Mr. Dialani was neither an agent nor a supervisor of Prudential.

CONTENTIONS

Appellants assert that Mr. Dialani was a supervisor within the meaning of the FEHA and under the definition of supervisor promulgated by the National Labor Relations and the California Agricultural Labor Relations Acts.

Respondents assert that Mr. Dialani was not a supervisor because he did not possess employer delegated actual authority to control the employment status of appellants.   He was an employee whose responsibilities were merely ministerial, low level administrative or marginally supervisorial.   In addition, they assert that employer strict liability for hostile work environment harassment is not the law in California.

STANDARD OF REVIEW

On appeal, we examine the facts presented to the trial judge and independently review their effect as a matter of law.  (Bonus-Bilt, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442, 186 Cal.Rptr. 357.)   We conduct an independent review of the trial court's determination of questions of law, not being bound by its reasons for its ruling.  (Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 682, 187 Cal.Rptr. 219.)   The reviewing court conducts a de novo examination to determine if the moving party is entitled to summary judgment as a matter of law.  (Enterprise Leasing Corp. v. Shugart Corp. (1991) 231 Cal.App.3d 737, 744, 282 Cal.Rptr. 620.)

DISCUSSION

 California law provides that an employer is strictly liable for damages which are incurred by an employee as a result of conduct by a supervisor or agent of the employer which constitutes sexual harassment in the workplace.  (Gov.Code § 12900 et seq.;  Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1328, 58 Cal.Rptr.2d 308;  Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 415, 27 Cal.Rptr.2d 457;  Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608, fn. 6, 262 Cal.Rptr. 842;  Pereira v. Schlage Electronics (N.D.Cal.1995) 902 F.Supp. 1095, 1102.)   An employer is liable for harassment of an employee by a coemployee, on the other hand, only if the employer knew or should have known of the harassing conduct and failed to take immediate corrective action.   In the case at bench it is, accordingly, essential to characterize the employment status of Mr. Dialani vis-à-vis his employer, Prudential.

The term “supervisor” has not been defined by the FEHA or by any case of which we are aware.   The California Fair Employment and Housing Commission (hereinafter FEHC) is the state agency charged with enforcing the FEHA. That agency has, on numerous occasions, without giving definition to the term “supervisor,” held that employers are strictly liable for harassment perpetrated in a work related context by supervisors.1

Division Four of this district considered the meaning of the term when deciding the issue of whether ABC Entertainment could be held strictly liable under the FEHA for the harassment of an actor applicant by a casting director.  (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1046-1047, 58 Cal.Rptr.2d 122.)   The court looked to the definitions set forth in Black's Law Dictionary and in the National Labor Relations Act.2 The court did not, however, define the term “supervisor.”

Respondent urges this court to define the term to include only those who act as the employer “in decisions involving hiring, promotions, discipline and like substantial matters.”   It is respondent's position that the FEHC “in a string of unenlightened administrative decisions” has made only “cursory inquiry” into the meaning of the term.   Respondents argue that the FEHA itself and the regulations reflect the definition of supervisor which respondent espouses and argues that under that definition Mr. Dialani was not a supervisor.   We find the argument unpersuasive and we decline to adopt the narrow definition urged by respondent.

 First, we reject the notion that an individual may be held to be a supervisor within the meaning of the FEHA only if he or she is imbued with plenary control over other employees in the work place, such as the power to hire, fire and promote.   We hold instead that an individual in the chain of command over an employee, who has been invested by the employer with sufficient authority in the employment workplace that he or she has sufficient actual or reasonably perceived power or control or direction in the work environment to significantly affect an employee's employment status, is a supervisor.

 Objective criteria to be considered in making the determination of whether the individual has been invested by the employer with the requisite actual or reasonably perceived power or control or direction include:

1) Has a title such as “supervisor” or “manager” been conferred on the individual, coupled with the responsibility and power to direct the work of other employees?

2) Do the duties of the individual include the responsibility or right to oversee the work of an employee or employees;  or to evaluate for the employer the performance of the employee;  or the duty to orientate or to train the employee?

3) Has the individual the actual power, or reasonably perceived power to discipline the employee or to recommend discipline of the employee?

4) Has the individual the power or reasonably perceived power to significantly influence the employee's working conditions such as by determining the working conditions or increasing or decreasing the work duties?

5) Is the employee charged with the day to day supervision of the work environment?

 With these factors in mind we turn to the issue in the case at bench.   The agreed upon facts reflect that Mr. Dialani was the only on-site manager at the detached office.   He had the title of sales manager and he had job duties which imbued him with considerable power, both actual and perceived.   His job duties included recruiting potential candidates to be considered for sales positions.   He was responsible for training new sales agents and for generally assisting and supervising sales agents with their sales duties and methodology of selling.   He controlled the working environment by determining such activities as the times at which meetings were to be held, when the 17 sales agents in the office were to report to him and whether or not permission for time off was to be granted or denied.   He was the only person to whom employees were required to report for sick leave.   Mr. Dialani handed out the weekly paychecks.   He reported the activities of the agents to the district manager and he made recommendations regarding hiring, promotions and transfers.   He had the power by virtue of his position as the on-site manager to control the information flow between his subordinate employees and upper management.   He made out reports regarding the work performance of the employees on his staff and he had the power to censure employees on his staff.   Mr. Dialani was, under this set of facts, clearly a supervisory employee with significant power which he used to affect appellants' work status.   We hold, therefore, that the grant of the motion for summary judgment by the trial court was erroneous.

 Having determined that Mr. Dialani was a supervisor within the meaning of the FEHA, it follows that his employer, Prudential, was strictly liable for Mr. Dialani's sexual harassing conduct.

 In California, under statutory and case law, two separate theories of sexual harassment are recognized.   Both theories are here relevant.   A plaintiff may state a cause of action for quid pro quo harassment under the FEHA by establishing that his or her employment, or benefits derived from employment, or the avoidance of adverse conditions of employment, are explicitly or implicitly conditioned upon the submission to a supervisor's unwelcome sexual advances.   Hostile work environment harassment occurs when an employee is subjected to unwanted sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature which is sufficiently severe or pervasive to alter conditions of the employee's environment so as to create a working environment that is abusive and hostile.  (Gov.Code, § 12900 et seq.;  Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414, 26 Cal.Rptr.2d 116;  Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 607, 262 Cal.Rptr. 842.) 3  A hybrid of these two theories may also exist where inappropriate sexual conduct in a work related context creates a hostile work environment.   Appellants have alleged such inappropriate sexual conduct by way of physical harassment including sexual assault.   Each appellant alleges that Chiman Dialani was a supervisor who subjected them to unwanted sexual affront in a work related context in violation of Government Code section 12940, subdivision (h).4

Respondent states that although it recognizes the existing authority which provides that an employer's liability for a supervisor's sexual harassment is strict liability, “a more plausible interpretation of the FEHA's employer liability language at issue here is that the Legislature intended to have the question resolved by reference to ordinary agency principles or respondeat superior․”   Respondent asserts that “the words ‘strict liability’ do not appear in the statute” (Gov.Code, § 12900 et seq.) and “no court has explained its basis for reaching that conclusion.”   Respondent urges upon us the analysis of the amicus brief submitted by the California Chamber of Commerce and the Employment Law Council.   That position is simply stated.   First, amicus assert that the appellate court “misconstrued” the language of the statute and incorrectly decided Kelly-Zurian v. Wohl Shoe Co., supra, 22 Cal.App.4th 397, 27 Cal.Rptr.2d 457.   Second, amicus asserts that the Fair Employment and Housing Commission decisions are neither authoritative nor persuasive because the Commission relies principally upon its own regulations.5  Amicus states that the regulation, when it was issued in 1980, contained language identical to the language of Title VII which “does not require that employers always be automatically liable for hostile environment harassment by supervisors.”   As we shall explain, the argument is not persuasive and the assertions are simply incorrect.

The federal Equal Employment Opportunity Commission (EEOC) in 1980, for the first time, addressed the issue of employer liability for harassment by a supervisor in the workplace.   In September of that year, the Commission adopted its Final Guidelines which took effect as law as of November 11, 1980.6  The regulation defined sexual harassment and provided that an employer is liable for its acts of sexual harassment and for those of its agents and supervisory employees irrespective of whether the acts complained of were authorized or forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence.   By contrast, the regulation provided that harassment of an employee by a coemployee rendered the employer liable only where the employer had knowledge or should have had knowledge of the conduct and failed to take immediate and appropriate corrective action.   The EEOC in the Introduction to the Final Guidelines stated:  “[T]he strict liability imposed in 1604.11(c) is in keeping with the general standard of employer liability with respect to agents and supervisory employees․” 7  From the regulation and the Final Guideline comment, then, it is abundantly clear that the federal standard in 1980 was strict liability.

In 1959, the Legislature enacted the Fair Employment Practice Act (FEPA) 8 in order to address employment discrimination.   That Act was repealed and reenacted in 1980 as the California Fair Employment and Housing Act (FEHA).9  In 1980, the California Fair Employment Housing Commission (FEHC), which is the administrative body imbued with the responsibility to implement the FEHA, adopted its administrative regulations 10 which provided the FEHC's view of the proper interpretation of the FEHA. The regulations adopted were the same as the 1980 EEOC Final Guidelines.   California legislation and federal legislation, on the subject of workplace sexual harassment by a supervisor, thus, at that time, were identical.   Both provided for strict liability as to the employer when supervisor sexual harassment occurred in the workplace.   The administrative decisions of the FEHC have uniformly found employers liable for harassment committed by supervisors in accord with the EEOC Final Guidelines.11

Subsequent to 1980, the Circuit Courts of Appeals generally adopted the position of the EEOC Final Guidelines that quid pro quo harassment by a supervisor would result in the employer being held strictly liable.12  In cases involving hostile work environment harassment, however, the federal courts have not applied the EEOC Final Guidelines.   The decisions rendered have generally held that such harassment is not subject to strict liability.13

In 1986, the case of Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 came before the United States Supreme Court.   The Solicitor General of the United States, Charles Fried, submitted an amicus curiae brief to the court on behalf of the EEOC. The brief, in effect, disavowed that portion of the 1980 Final Guidelines in which the EEOC had taken the position of imposition of employer strict liability for all sexual harassment by supervisors.   Now, via the brief the EEOC adopted the new position that an employer is not liable for supervisor harassment when the theory of liability is hostile work environment.   The court, in dictum, agreed with this new EEOC statement of liability theory.14

Since the Vinson decision in 1986, the federal circuits have taken differing positions on the proper test to apply to hostile work environment harassment by a supervisor.   In the Ninth Circuit the law that has been applied is strict liability for quid pro quo harassment and notice liability for hostile work environment harassment.15  That is to say, where an employee seeks to hold an employer liable for non quid pro quo conduct by a supervisor which is sexual harassment, the employee must establish that the employer had actual or constructive notice of the conduct and failed to take immediate, effective corrective action.

The law on the issue in the California state courts is clear.   The Legislature has codified the 1980 EEOC Final Guidelines as state law thus providing that employers are strictly liable for all sexual harassment conduct committed by their supervisors.   As previously noted the FEHC has consistently applied a strict liability rule in rendering its decisions.   The case of Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590, 262 Cal.Rptr. 842 is the first sexual harassment case under FEHA to come before the state courts.   The court held that in accord with Priest v. Rotary (N.D.Cal.1986) 634 F.Supp. 571, 582, and Henson v. City of Dundee, supra, 682 F.2d at pages 903-905, an employer is, under FEHA, strictly liable for the harassing conduct of its agents and supervisors.  (Fisher, supra, at p. 608 and fn. 6, 262 Cal.Rptr. 842.) Fisher was followed by Kelly-Zurian v. Wohl Shoe Co., supra, 22 Cal.App.4th 397, 27 Cal.Rptr.2d 457, a case in which the plaintiff's motion for judgment N.O.V. was granted and affirmed on appeal because the jury incorrectly found the supervisor, but not the employer, liable for sexual harassment.   The court held that the statute provides that the employer is strictly liable for sexual harassment conduct by a supervisor.  (Kelly-Zurian, supra, at pp. 415-416, 27 Cal.Rptr.2d 457.)   The California Supreme Court has articulated its recognition that the FEHA provides for strict liability.   In the case of Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1020, 47 Cal.Rptr.2d 478, 906 P.2d 440, the court states:  “[E]mployers remain directly liable to sexually harassed workers for violations of the FEHA (section 12940, subd. (h))․”  Division Five of this district, likewise, has articulated its recognition of the rule:  “In fact, the FEHA provides that an employer is strictly liable for the harassment of an employee by an agent or supervisor․”  (Fiol v. Doellstedt, supra, 50 Cal.App.4th at p. 1328, 58 Cal.Rptr.2d 308.)   Finally, we note that Division Four of this district has observed:  “From these precedents we distill the principle that [ ] an employer's liability under the Act [FEHA] for an act of sexual harassment committed by a supervisor or agent is broader than the liability created by the common law principle of respondeat superior․”  (Doe v. Capital Cities, supra, 50 Cal.App.4th at p. 1048, 58 Cal.Rptr.2d 122, italics in the original.)

 Since it is abundantly clear that although the federal jurisdictions do not uniformly employ a strict liability standard when considering cases involving supervisor hostile work environment harassment, it is equally clear that strict liability is the standard in California under statutory and case law for both hostile work environment and quid pro quo harassment.   We thus decline respondent's urging that we reject the administrative case law holdings vis-à-vis the FEHA, by ignoring the FEHC decisions 16 on the ground of “cursory” analysis, and that we adopt the law employed in our federal jurisdiction.

 We are cognizant of the disabling effects of sexual harassment in a work related context such as poor morale, economic and psychological toll, and loss of work productivity.   It is clear from the Final Guidelines that the policy rationale of the Act has been to minimize work related harassment by expanding employer responsibility.

The reasoning which underlies the FEHA is solid.   The employer has a duty to provide a safe work place and as a matter of policy this duty is non-delegable.   The employer is in the best position to prevent the occurrence of harassment because the employer has ultimate control over the workplace.   To the extent that the employer has engaged in an enterprise for profit, the employer should bear the risk of loss which can be absorbed and distributed to the community at large through pricing or the device of insurance.   Finally, a strict liability role provides added incentive for the employer to police the conduct of its supervisory employees and, in addition, increases the probability that the harassed victim will be compensated for the harm suffered.

For the reasons herein stated the grant of the motion for summary judgment must be reversed.   We hold that as a matter of law, Mr. Dialani was a supervisor within the meaning of the FEHA. With that determination having been made, and the harassing conduct having been stipulated to by the parties, we hold that under Government Code section 12940, the employer was liable.

 Respondent's urging that punitive damages are not applicable is meritless.  “[S]exual harassment ․ in itself pleads the evil motive necessary to support punitive damages․”  (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 620, 262 Cal.Rptr. 842.)

DISPOSITION

The summary judgment is reversed.   The case is remanded to the trial court for disposition consistent with the views expressed herein.   Plaintiffs are to recover their costs on appeal.

FOOTNOTES

FOOTNOTE.  

1.   See, e.g., DFEH v. Right Way Homes, Inc. (1990) No. 90-16, FEHC Precedential Decisions 1990-1991 CEB 5.1;  DFEH v. Barbara Rosenberg (1990) No. 90-09, FEHC Precedential Decisions, 1990-1991 CEB 4;  DFEH v. Madera County (1990) No. 90-03, FEHC Precedential Decisions 1990-1991 CEB 1;  DFEH v. Community Hospital of San Gabriel (1986) No. 86-08, FEHC Precedential Decisions 1986-1987 CEB 2;  DFEH v. Del Mar Avionics (1985) No. 85-19, FEHC Precedential Decisions 1984-1985 CEB 16;  DFEH v. Bee Hive Answering Service (1984) No. 84-16, FEHC Precedential Decisions, 1984-1985 CEB 8;  DFEH v. Fresno Hilton Hotel (1984) No. 84-03, FEHC Precedential Decisions, 1984-1985 CEB 2.

2.   Black's Law Dictionary (6th Ed.1990) p. 1438, col. 2. “[O]ne having authority over others, to superintend and direct.”   The N.L.R.A. definition:  “The term ‘supervisor’ means any individual having authority, in interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”  (29 U.S.C. § 152(11).)

3.   The FEHA and Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) are analogous in that they both hold that it is an unlawful employment practice to sexually harass an employee.

4.   The FEHA in relevant part provides at Government Code section 12940, subdivision (h)(1):  “It shall be an unlawful employment practice, ․ [¶] ․ [¶] [f]or an employer, ․ because of ․ sex, ․ to harass an employee․   Harassment of an employee ․ by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”

5.   California Code Regulations, title 2, section 7287.6(b).

6.   45 Code of Federal Regulations former § 74677 (1980) (Codified as 29 C.F.R. 1604.11(c)(1995).)

7.   45 Code of Federal Regulations former § 74676 (1980).

8.   Former Labor Code sections 1410 et seq.

9.   Statutes 1980, chapter 992, section 11;  Government Code sections 12900-12996.

10.   California Code of Regulations, title 2, section 7287.0 et seq., and see section 7287.6(b)(2) and (3).   Codified as Government Code section 12940, subdivision (h).

11.   See footnote 1.

12.   E.g., Hicks v. Gates Rubber Co. (10th Cir.1987) 833 F.2d 1406;  Highlander v. KFC Nat. Management Co. (6th Cir.1986) 805 F.2d 644, 648;  Horn v. Duke Homes, Div. of Windsor Mobile Homes (7th Cir.1985) 755 F.2d 599, 604;  Katz v. Dole (4th Cir.1983) 709 F.2d 251, 255, fn. 6;  Henson v. City of Dundee (11th Cir.1982) 682 F.2d 897, 909.

13.   E.g., Bouton v. BMW of North America, Inc. (3d Cir.1994) 29 F.3d 103, 110;  Kauffman v. Allied Signal, Inc., Autolite Div. (6th Cir.1992) 970 F.2d 178, 185, certiorari denied 506 U.S. 1041, 113 S.Ct. 831, 121 L.Ed.2d 701 (1992);  Kotcher v. Rosa and Sullivan Appliance Center, Inc. (2d Cir.1992) 957 F.2d 59, 63;  Guess v. Bethlehem Steel Corp. (7th Cir.1990) 913 F.2d 463;  Baker v. Weyerhaeuser Co. (10th Cir.1990) 903 F.2d 1342, 1344;  Andrews v. City of Philadelphia (3d Cir.1990) 895 F.2d 1469, 1478;  Steele v. Offshore Shipbuilding, Inc. (11th Cir.1989) 867 F.2d 1311, 1316;  Hall v. Gus Const. Co., Inc. (8th Cir.1988) 842 F.2d 1010, 1015-1016.   A few cases have taken the position of strict liability.  (E.g. Vinson v. Taylor (D.C.Cir.1985) 753 F.2d 141, 150-152;  Bundy v. Jackson (D.C.Cir.1981) 641 F.2d 934, 942-943;  Jeppsen v. Wunnicke (D.Alaska 1985) 611 F.Supp. 78.)

14.   Meritor Savings Bank v. Vinson,supra, 477 U.S. at pages 72-73, 106 S.Ct. at page 2408 and see Phillips, Employer Sexual Harassment Liability Under Agency Principles:  A Second Look at Meritor Savings Bank FSB v. Vinson (1991) 44 Vanderbilt L.Rev. 1229-1272.   For a thorough study of Title VII liability, see Oppenheimer, David Benjamin, “Exacerbating the Exasperating:  Title VII Liability of Employers for Sexual Harassment Committed By Their Supervisors.”

15.   Steiner v. Showboat Operating Co. (9th Cir.1994) 25 F.3d 1459, 1464 certiorari denied (1995) 513 U.S. 1082, 115 S.Ct. 733, 130 L.Ed.2d 636 [A company vice president who verbally harassed an employee was reprimanded by the employer.   The harassment continued for 11 months before the harasser was fired.   The Court of Appeals reversed the grant of summary judgment against the employer on the theory that the company had properly responded to the employee's complaints.];  Nichols v. Frank (9th Cir.1994) 42 F.3d 503.  [A postal clerk was sexually harassed by the shift supervisor.   The post office was held to be not liable under a hostile environment theory but was liable on a quid pro quo theory].

16.   The court will give great weight to an administrative agency's interpretation of its own regulations and the statutes under which it operates.  (Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Cal.3d 86, 93, 130 Cal.Rptr. 321, 550 P.2d 593;  Carmona v. Division of Industrial Safety (1975) 13 Cal.3d 303, 310, 118 Cal.Rptr. 473, 530 P.2d 161.)

DUNN, Associate Justice.** FN** Judge of the Municipal Court for the Long Beach Judicial District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

SPENCER, P.J., and ORTEGA, J., concur.