(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)
PLAINTIFF'S SEVENTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS IS NOT BARRED
In some exceptional circumstances a separate civil action may lie where the employee's injury results from employer conduct that is outside the normal risk of employment. The Workers' Compensation Act does not preempt such actions. Charles J. Vacanti, M.D., Inc. v. State Comp., Ins. Fund (2001) 24 Cal.4th 800, 819-820. Sexual harassment in the workplace is not a normal incident of employment. Therefore, a claim for damages based on sexual harassment is not preempted by the Worker's Compensation Act. Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 347; Murray v. Oceanside Unified School Dist., (2000) 79 Cal.App.4th 1338, 1363.
Similarly, discrimination on the basis of race, religion, age or gender is not a normal incident of employment, and therefore workers' compensation is not the exclusive remedy for injury from such discriminatory conduct. Jones v. Los Angeles, Comm. College District (1988) 198 Cal.App.3d 794, 802 (holding that a claim for emotional and psychological damages is not barred where distress was allegedly caused by employer's illegal discriminatory practices.) Discrimination in employment is not a normal incident of employment. A claim for damages under the Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq.) is not preempted by the workers' compensation act. Accardi v. Superior Court, 17 Cal. App. 4th 341, (1993). Here Plaintiff is the victim of sex discrimination. See Accardi at p. 347.
The Legislature ...did not intend that an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices. Id. at 353. Thus, a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer's illegal discriminatory practices. Id. ... [S]ection 132a does not provide an exclusive remedy and does not preclude an employee from pursuing FEHA and common law wrongful discharge remedies. Moorpark v. Sup. Ct., 18 Cal. 4th 1143, 1998.