By Andrew H. Friedman
Andrew H. Friedman is a founding partner of Helmer Friedman LLP in Beverly Hills, where he (almost) exclusively represents employees in all areas of employment law. Mr. Friedman is the author of a two-volume employment law treatise, Litigating Employment Discrimination Cases (James Publishing 2005-2020). Mr. Friedman served as Counsel of Record in Lightfoot v. Cendant Mortgage Corp. et. al. 137 S.Ct. 553 (2017), where he successfully persuaded the U.S. Supreme Court to grant certiorari. In January 2017, the Supreme Court, in a unanimous decision authored by Justice Sotomayor, reversed the Ninth Circuit and ruled in favor of Mr. Friedman's clients. Mr. Friedman's email address is afriedman@helmerfriedman.com. He is proud to guest write this column for his friend (and sometimes co-counsel and/or opposing counsel), Anthony J. Oncidi, who, until this issue, wrote this column without interruption for every issue of this publication for 30 years.
Smith v. BP Lubricants USA Inc., ___ Cal. Rptr. 3d ___, 2021 WL 1905229 (May 12, 2021)
Robert Smith, an African American, worked for Jiffy Lube for almost two decades. During that time, Smith alleged that he was passed over for promotions, criticized, and harassed because of his race. On one occasion, Jiffy Lube arranged for a third-party vendor-BP Lubricants USA, Inc. dba Castrol-and one of the vendor's employees, Gus Pumarol, to provide a presentation to Jiffy Lube's employees about a new Castrol product. During the presentation, Pumarol made a series of comments that Smith found racially offensive including saying to or about Smith: (1) "You sound like Barry White."; (2) "I don't like taking my car to Jiffy Lube because I've had a bad experience with a mechanic putting his hands all over my car. How would you like Barry White over there with his big banana hands working on your car?"; and (3) in response to a question from Smith, "What, I can't see your eyes, what?" All of the non-African Americans in attendance laughed at each of Pumarol's comments, including three of Smith's superiors. The next day, a Jiffy Lube employee crossed out Smith's name on the company's work schedule and replaced it with "Banana Hands."
Smith sued, alleging that BP and Pumarol violated the Fair Employment and Housing Act's (FEHA) prohibition on racial harassment in the workplace by "aiding and abetting" Jiffy Lube's harassment and discrimination against him. He also sued Pumarol for intentional infliction of emotional distress, and sued both Pumarol and BP for racial discrimination under the Unruh Civil Rights Act (Cal. Civ. Code § 51).
BP and Pumarol demurred to Smith's complaint. The...
