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JUDICIAL UPDATES In Order to Show Discrimination Based on Race of Gender, the Conduct Must Be Prompted by Gender or Race and Must be Sufficiently Severe or Pervasive Kim Jones alleged that her male co-workers criticized her unfairly and treated her in a hostile manner, that a male co-worker physically assaulted her during an altercation concerning the use of a wheelbarrow at work, and that a supervisor directed her to work in an area that was infested with rats. In her deposition testimony, she stated that she did not know whether these acts were prompted by her gender or race. The Court concluded that the employee failed to present evidence of harassment under Government Code section 12940, subd. (j)(1). She also did not show that the conditions she described were sufficiently severe Workers’ compensation exclusivity barred the employee’s claims of emotional distress injuries, assault and battery, and negligent supervision and retention arising from the wheelbarrow incident. To be within the scope of employment for purposes of workers’ compensation exclusivity, an incident giving rise to an injury must be an outgrowth of the employment, and the risk of injury must be inherent in the workplace, or typical of or broadly incidental to the employer’s enterprise. For example, throwing a hammer at a person during an argument on a construction site has been found to be within the scope of employment when there was no evidence of a purely personal animus. The incident with the wheelbarrow was sufficiently related to the scope of employment to trigger workers’ compensation exclusivity. (Jones v. Department of Corrections, California Court of Appeal Case No. D048281.)
NEXT: Employer Violated Section 132a by Requiring Workers’ Compensation Claimant to Use Earned Vacation Time Rather Than Sick Leave to Attend Medical Appointments for His Industrial Injuries
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