Sey v. Razavi

Filed 11/21/07 Sey v. Razavi CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, David L. Minning, Judge. Affirmed in part, reversed in part, and remanded.

Irving Meyer for Plaintiff and Appellant.

Morgan, Lewis & Bockius, Jason M. Steele and Carla J. Feldman for Defendants and Respondents.

introduction

Plaintiff Sayom Sey appeals from judgment granted in favor of defendants Mohammad Razavi (Razavi) and The Bell Gardens Bicycle Club (the casino), in this action for sexual harassment in violation of the California Fair Employment and Housing Act (FEHA, Gov. Code,  12900 et seq.). We conclude after an independent review of the matter that triable issues of material fact remain in dispute as to the cause of action for sexual harassment based on a hostile work environment. We reverse the judgment as to that cause of action alone, and otherwise affirm.

factual and procedural background

The Pleadings

Sey filed a complaint against Mohomad Mo and the Bicycle Club Casino in March 2005. Therein, in the first cause of action for sexual harassment (Gov. Code,  12940),[1]she alleged that Razavi was her supervisor, and that between September and December 2004, he sexually harassed her in the form of words, as well as quid pro quo statements, and physical touching. She alleged that she reported the sexual harassment to other supervisors, but the harassment continued. She left her employment at the casino soon thereafter.[2]

In her second cause of action alleging the existence of a hostile work environment, Sey alleged that Razavi would say things of a sexual nature and attempted and did touch Ms. Sey in a sexual manner, [and told] her that if she did sexual things for him he would do things for her at work, creating a hostile work environment.[3]

Defendants filed answers to the complaint in which they generally denied Seys allegations and asserted various affirmative defenses.

The Motion for Summary Judgment

Defendants moved for summary judgment or, in the alternative, for summary adjudication of issues, and filed a separate statement of undisputed facts in support of the motion. Sey filed opposition to the motion for summary judgment, including a separate statement in opposition to defendants statement of undisputed facts. Defendants then filed reply papers.

Defendants assert on appeal that Seys first and second causes of action for sexual harassment fail as a matter of law because Razavis alleged behavior was neither unwelcome nor objectively or subjectively severe or pervasive enough to create a hostile or abusive environment. Defendants set forth in support of this contention the following allegedly undisputed facts.

1. Razavi Had No Formal Supervisory Authority Over Sey

Sey worked as a corporate banker for Certified Players beginning in September 2004, and was assigned to work at the Bicycle Club Casino in Bell Gardens (the casino). Working as a banker entailed sitting at the tables and gambling with the customers, and paying out money as required. Sey was employed by Certified, not by the casino, and she reported only to supervisors employed by Certified. Razavi was employed at all relevant times by the casino as a floor person, and had no supervisory authority over Certifieds bankers, including Sey.

In her reply to defendants separate statement, Sey pointed to her deposition testimony that while Razavi was not one of her companys supervisors, hes I guess, our supervisor, because we have to listen to him. Because hes working the floor. She also noted that Razavi had told her that when people piss me off, Ill do whatever it takes to get them fired. Another time, Razavi told a dealer at Seys table that if she [Sey] ever says one word, to let me [Razavi] know, because Im going to kick her out of here.

2. Lisa Curtis Observations

Lisa Curtis also worked as a floor person for the casino. She frequently observed Sey working at the casino and interacting with Razavi. Sey often wore revealing clothing to work, including short skirts and low-cut shirts that drew attention to her breasts. Curtis twice called to Seys attention that her nipples were exposed. Sey simply laughed and said, Oh, sorry. She appeared not to mind and indeed she seemed to enjoy the attention. Curtis frequently saw Sey grab her own breasts and make gestures toward other employees and patrons; she repeatedly grabbed her breasts and asked various people, Do you want some fresh milk? Sey often allowed coworkers and patrons to touch her hair and body, and occasionally kissed them. She never objected to such touching and in fact seemed to enjoy it; she sometimes initiated the contact. Sey regularly and willingly participated in sexual banter with other employees and customers. Curtis once joked with Razavi that he had no money and no power. Sey overheard them and agreed with Curtis, saying that Razavi was old, and speculating that Razavi was grey everywhere and had a small penis. Sey then continued to engage in extremely explicit conversation regarding whether Razavi engaged in oral sex, and did not appear to be offended by any of it. Sey often used profanity at work. Sey admitted to calling Curtis a bitch in response to Curtis calling her one.

In opposition, Sey pointed to her deposition testimony stating that she was not sure if Curtis had the opportunity to observe Sey and Razavi interacting, [b]ecause most of the time . . . hes there when shes not there. Sey admitted to wearing low cut shirts to work, but denied ever wearing short skirts. Sey denied that Curtis ever told Sey that her nipples were exposed. Sey did not remember asking customers if they wanted fresh milk as she held her breasts, but she was not sure one way or the other. She conceded that there may be a customer that probably played with my hair, but she did not think she ever kissed any customers. Sey denied that Curtis ever complained to Sey about Seys sexual behavior at work. In a declaration, Sey said it was untrue that she regularly participated in sexual banter with employees and customers. Sey denied ever telling Razavi any sexual jokes. Sey only said Razavi had a small penis in response to his repeatedly asking her to go out with him and saying he had a big one. She said at deposition: I was like, Fuck you, leave me alone. You got a little dick. Yes, thats what I said to him. Sey admitted to using foul language at work, but said she did so only twice, to herself rather than out loud. She admitted using the word fuck, but could not recall whether she said tits or shit. She said Razavi, Curtis, and all the other employees cursed all the time.

According to Curtis, on one occasion, Sey slapped Curtis on the buttocks. When Curtis objected, Sey made some reference to lesbianism, but shortly thereafter Sey apologized to Curtis for her behavior. Curtis and Sey worked together frequently, but Sey never complained that she was offended by Razavis comments or behavior.

In opposition, Sey pointed to her deposition testimony in which she stated that she did not remember ever touching Curtis or apologizing to her, although she was not sure. Sey said Curtis had heard her tell Razavi to leave me the F alone. Im married, and Curtis had even said to Razavi, Yeah, leave her alone. Sey told Curtis that Razavi was always saying something about Seys breasts or asking her to sleep with him. Curtis replied, Yeah, hes an asshole. But, you know, outside of work, hes my best friend, but here, I cant stand him when were at work.

3. Tammy Trans Observations

Tammy Tran, who also worked as a banker for Certified at the casino, often observed Sey and Razavi interacting and joking around at work. Their interactions appeared to be friendly. They sometimes discussed sexual topics. It did not appear to Tran that Sey was ever offended by Razavi.

Sey said in a declaration filed along with her reply that she complained to Tran about Razavi sexually harassing her, and Tran responded that Razavi had also sexually harassed her.

4. Events Leading to Seys Filing a Written Complaint

On December 9, 2004, Sey was eating pie or cake at her table. Razavi told her to stop because it violated casino rules, but she ignored him. He told her again, and became upset when she again ignored him, raising his voice at her. He reported the incident to Seys supervisor, Kevin. Razavi and Sey then had a heated argument about whether Sey had thrown down her plate. On that day, Sey was wearing an off-the-shoulder shirt. Tran had pulled Seys shirt to the side in a playful manner, causing it to move down a bit. According to Sey, Razavi jokingly asked twice if he could also pull on her shirt, but she ignored him. Razavi then told Sey not to eat the cake and became angry, telling her that he would have security remove her from the casino. Sey felt that he did so because he got mad when she failed to respond to his asking whether he could pull her shirt down. Later that day, Razavi apologized to Sey for raising his voice at her, saying, [b]ut when people piss me off, Ill do whatever it takes to get them fired. He said that he really liked her and did not want to get her fired. He asked if everything was okay between them, and she said she did not want him to talk to her. He refused to leave until she said that they were okay, and eventually she said, Fine, whatever. He then kissed her on the forehead and walked away.

In her opposition papers, Sey pointed to her deposition testimony in which she stated that she did not know of any casino rules that prohibited eating at the blackjack table. She said Razavi had brought food to her and others, but apparently not to the same location involved in the incident on December 9, 2004.

On or about December 15, 2004, Sey submitted a written incident report regarding the events of December 9, 2004. Therein she related the incident with her shirt, Razavis anger over her failure to respond and subsequent argument over her eating at the table, and his apology to her later in the day.

Seys supervisors asked her to write another report, to be more specific from when he started bothering me. Thats why I wrote that he always comes around. Because they wanted to know everything he did. In a second incident report, dated December 10, 2004, Sey stated: Mo constantly bothers me while Im at work. He comes to my table and makes remarks about my chest. He has offered money to me and asked if I would sleep with him. Every day I work with him he comes around and say things like could I put those in my mouth?, could I hold those with my hands like this, could I sleep with you just one time. Ive asked him to leave me alone, but he continue to keep harassing me. On certain day when I ask him to leave me alone or when I ignore him he gets upset and threatens me. He starts picking on little things that I do and threaten to have me kick out of the casino by the security.

Finally, Sey wrote in a third incident report dated December 12, 2004: Charlie [a manager] spoke with me about the report I wrote on Mo. He told me if Mo said anything else to me, I should let him know. Im writing this report to inform you on [Dec. 12, 2004,] Mo came to my table 3 times. . . . He made a statement about the way my breast was bouncing. I told him to leave me alone. He said okay. He came back later and ask to take me out. Lisa overheard him and told him he would have to ask my husband first. I told him 3 time to leave me alone that day. He finally asked if I was serious and I told him, Yes.[4]

Sey testified at her deposition that Razavi harassed her by commenting on her body, asking her to go out with him, occasionally hugging her or touching her, and asking in a joking way if he could adjust her shirt. She testified that there were no other incidents of alleged harassment.

In response, Sey pointed to her deposition testimony in which she stated that she suffered from nervousness at work because of Razavi harassing me, . . . offering me money to sleep with him. Just saying all kind of sexual things to me all the time. She said he also harassed her in that I couldnt speak with certain guys. He would accuse me of liking, you know, this guy and that guy. Anyone I would speak with, he would give me a hard time. Like, do you like this guy, or something. Or, if you do, Im going to kick him out. Sey described the physical touching referred to in her complaint as follows: When I would get there, [Razavi] would put his arms around me and say, Oh, hey, how are you doing, and, you know, try to hug us. Or his hand would try to you know, when he put his arm around you to give you a hug, hed try to touch you. In addition, [s]ometimes [Razavi] would come by the table and, you know, hell just touch your leg really fast and go, Oh, okay, but you know, hes kind of like rubbing on your leg.

5. The Casinos Investigation

Upon receiving Seys complaint, the casino began an investigation into her claims and immediately suspended Razavi. Joe Munger and Cristina Stephens of the casinos human resources department interviewed several witnesses, including Sey, Razavi, Lisa Curtis, Tina Tang, and Kevin Barcley (Seys supervisor), in accordance with the casinos procedure for investigating claims of sexual harassment. Barcley told Stephens that he frequently observed Sey and Razavi joking around in what appeared to be a consensual manner. They often joked dirty and said bad words to each other. Sey never seemed to be offended. Tang told Stephens that she observed Sey making sexual jokes to Razavi and asking him to look at her breasts. Based on her investigation, Stephens concluded that the alleged sexual interactions between Sey and Razavi were consensual, and that Razavi should be allowed to return to work. Before he returned to work, the casino required Razavi to re-read and sign the casinos policy prohibiting sexual harassment, and warned him that any improper sexual comments or behavior would be grounds for termination. Razavi had participated in sexual harassment prevention training when he began working for the casino.

In opposition, Sey objected that Barcleys and Tangs statements to Stephens during the course of her investigation constituted hearsay. In addition, Sey pointed to her deposition testimony in which she stated that she had told Curtis that Razavi harassed her, and Curtis agreed that he was bothersome.

6. Seys Resignation from the Casino, and the Lack of Adverse Employment Action

Razavi never had security remove her from the casino; he did not evaluate her job performance; he did not demote her, transfer her, or terminate her employment. After she submitted the written complaints about Razavi, Sey requested a transfer to the graveyard shift, and her request was immediately granted by Certified. One reason she wanted to change to the graveyard shift was so she would not be working with Razavi. Sey liked working the graveyard shift.

In early February 2005, a dealer employed by the casino, Stephanie, reported that Sey used profanity when they got into an argument about Seys table coming up short due to Seys purported failure to pay attention. The floor manager asked that Sey be transferred from the Pavilion side, which had higher table limits, to the $2 side. A supervisor employed by Certified transferred Sey, as requested. After Sey began working in the $2 area, another dealer complained about Seys poor attitude and use of profanity. A Certified supervisor then told Sey that she would be assigned to the Freedom Court area, which was the casinos designated smoking section. When she began working at the casino, Sey had signed a document indicating she was willing to work in the smoking area. However, when told she would begin working there, Sey decided to quit. She stated that she left voluntarily to find work elsewhere. She stated at deposition: I stopped working because, ever since Ive had a problem with Mo, it seemed like the casino was picking on me. And I went to the two-dollar side and they said that I was cursing. So they wanted to put me in the smoking room and I didnt want to work there, so I just stopped working there.

The Trial Courts Ruling

After hearing oral argument on October 12, 2006, the trial court took the matter under submission and thereafter issued a minute order granting the motion for summary judgment. An order granting the motion for summary judgment, as well as judgment in favor of defendants, were entered on December 4, 2006. This timely appeal followed.

discussion

I. The Standard of Review and the Burden of Proof

The standard of review for summary judgment is well established. The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) A moving defendant has met his burden of showing that a cause of action has no merit by establishing that one or more elements of a cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850; Lackner v. North (2006) 135 Cal.App.4th 1188, 1196.)

We independently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Lackner v. North, supra, 135 Cal.App.4th at p. 1196.) In performing our independent review of the evidence, we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)

In determining whether there are triable issues of material fact, we consider all the evidence set forth by the parties, except that to which objections have been made and properly sustained. (Code Civ. Proc.,  437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We accept as true the facts supported by plaintiffs evidence and the reasonable inferences therefrom (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 148), resolving evidentiary doubts or ambiguities in plaintiffs favor (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768).

II. Sexual Harassment

The Fair Employment and Housing Act (FEHA) prohibits a variety of unfair labor practices including discrimination in terms, conditions or privileges of employment on the basis of sex. ([Gov. Code,]  12940, subd. (a).) (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 605.) (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516.) Subdivision (j)(1) makes it unlawful for an employer, because of sex, to harass an employee, an applicant, or a person providing services pursuant to a contract. There are two recognized categories of sexual harassment claims. The first is quid pro quo harassment, where a term of employment or employment itself is conditioned upon submission to unwelcome sexual advances. (Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414.) The second . . . is hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. (Ibid.) (Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at pp. 516-517.)

In her complaint, Sey alleged both categories of sexual harassment. She alleged that Razavi was her supervisor, and that between September and December 2004, he sexually harassed her in the form of words, as well as quid pro quo statements, and physical touching. She alleged the existence of a hostile work environment in that Razavi would say things of a sexual nature and attempted and did touch Ms. Sey in a sexual manner, [and told] her that if she did sexual things for him he would do things for her at work, creating a hostile work environment. ( 12940, subd. (j)(1).)[5]

A. Hostile Work Environment

The Supreme Court has described a hostile work environment in the context of sexual harassment as a workplace permeated with discriminatory intimidation, ridicule and insult, [citation] that is sufficiently severe or pervasive to alter the conditions of the victims employment and create an abusive working environment, . . . (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 [114 S.Ct. 367, 370, 126 L.Ed.2d 295].) Sexual harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives its victim of her statutory right to work in a place free of discrimination, when the sexually harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt her emotional tranquility in the workplace, affect her ability to perform her job as usual, or otherwise interferes with and undermines her personal sense of well-being. [Citation.] (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 608.)

[W]hether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employees work performance. (Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 23 [114 S.Ct. at p. 371].) The plaintiff must prove that the defendants conduct would have interfered with a reasonable employees work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. [Citation.] (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at pp. 609-610, fn. omitted.) (Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 517, italics added.)

Defendants contend that the undisputed evidence demonstrates that in light of Seys own behavior, Sey was not subjectively offended by the charged conduct. (Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at pp. 518-519, quoting Faragher v. City of Boca Raton (1998) 524 U.S. 775, 787 [a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so].) [T]he conduct at issue must be unwelcome in that the plaintiff neither solicited it nor invited it and regarded the conduct as undesirable or offensive. [Citations.] The proper inquiry is whether [appellant] indicated by [her] conduct that the alleged harassment was unwelcome. [Citations.] (Scusa v. Nestle U.S.A. Co., Inc. (8th Cir. 1999) 181 F.3d 958, 966.)[6]

After examining the evidence set forth by the parties in support of and in opposition to the motion for summary judgment, we cannot conclude that undisputed evidence demonstrates that Razavis conduct toward Sey was in fact welcome. The evidence indicates that Sey willingly contributed to the sexually charged atmosphere at the casino with her choice of clothing, her comments and behavior in calling attention to her breasts in a bawdy manner, her language, and her acceptance of physical contact with other employees and customers. However, by engaging in such conduct, she did not forfeit her right to object to Razavis advances and sexual harassment. While Curtis and others stated that she engaged in and even initiated sexual banter with Razavi, Sey specifically denied doing so. She testified that she objected (sometimes in Curtiss presence) to Razavis advances, repeatedly told him to leave her alone, and did not welcome his conduct.

At the summary judgment stage, the court should not weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter. [Anderson v. Liberty Lobby Inc. (1986) 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202.] Rather, the courts function is to determine whether a dispute about a material fact is genuine, that is, whether a reasonable jury could return a verdict for the nonmoving party based on the evidence. Id. at 248, 106 S.Ct. at 2510. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [plaintiffs] favor. Id. at 255, 106 S.Ct. at 2513. If reasonable minds could differ as to the import of the evidence, summary judgment is inappropriate. Id. at 250, 106 S.Ct. at 2511. (Quick v. Donaldson Co., Inc. (8th Cir. 1996) 90 F.3d 1372, 1376-1377.) The gravamen of any sexual harassment claim is that the alleged sexual advances were unwelcome. [Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 68, 106 S.Ct. 2399, 2406, 91 L.Ed.2d 49.] Harassing conduct is considered unwelcome if it was uninvited and offensive. [Burns v. McGregor Electronic Industries, Inc. (8th Cir. 1993) 989 F.2d 959, 962.] The question of whether particular conduct was unwelcome will turn largely on credibility determinations by the trier of fact. Meritor, 477 U.S. at 68, 106 S.Ct. at 2406. The proper inquiry is whether the plaintiff indicated by his conduct that the alleged harassment was unwelcome. Id. (Quick v. Donaldson Co., Inc., supra, 90 F.3d at pp. 1377-1378.) Sey plainly testified that she indicated by her words and conduct that Razavis alleged harassment, which can only be described as severe and pervasive, was unwelcome. Curtis and others testified to the contrary. Thus, the critical facts are in dispute, and summary judgment is not appropriate.

B. Quid Pro Quo Harassment

We further conclude, however, that the undisputed evidence indicates that Razavi did not engage in quid pro quo harassment of Sey. The allegation in her complaint that Razavi told her that if she did sexual things for him he would do things for her at work, was not borne out in her deposition testimony. In the first place, he was not her supervisor or even employed by the same entity as Sey. Even were we to assume that he had the ability to influence her employment status, there is no indication that he ever did so, or even implied that he would if she refused him. She said he asked her to have sex with him, but there is no indication that he conditioned any terms of her employment on her acceptance of his advances. His purported threats that he would have her kicked out or would do anything to get someone fired if they made him angry did not amount to quid pro quo statements as there was no nexus established between those comments and his alleged advances. (See, e.g., Holly D. v. California Institute of Technology (9th Cir. 2003) 339 F.3d 1158.) Finally, Seys testimony that she could not speak with certain men, otherwise Razavi would give her a hard time and accuse her of liking them, does not constitute evidence of quid pro quo harassment. None of these incidents show that [Sey] would have to accept Razavis inappropriate sexual conduct or either face disciplinary action or being terminated from her employment. None of Razavis purported actions were paired with threats, stated or implied, to adversely affect the terms of her employment. Seys resignation was voluntary, and there is no evidence that her transfer to the smoking section was influenced by Razavi or was done in retaliation for her complaining of sexual harassment. Indeed, Sey has abandoned her claim of retaliation on appeal.

disposition

The judgment is reversed. On remand, the trial court is to enter summary adjudication in favor of defendants on all of plaintiffs claims, except for

her claim for sexual harassment based on a hostile work environment. Costs on appeal are awarded to appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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Analysis and review provided by Chula Vista Property line attorney.

[1] All undesignated section references are to the Government Code.

[2] In February 2005, Sey filed a charge of sexual harassment with the California Department of Fair Employment and Housing (DFEH). In March 2005, the DFEH issued a notice of right to sue.

[3] Sey also asserted causes of action for retaliation, negligent hiring and retention, improper investigation, and failure to prevent harassment. On appeal, Sey contends only that summary judgment should not have been granted because a material dispute remains as to whether Razavi sexually harassed her and whether there existed a hostile work environment. Sey has forfeited any argument as to the other causes of action by not pursuing them on appeal.

[4] Sey said she wrote the incident report dated December 15, 2004 first, before the other two reports, even though the other two are dated December 10 and 12, 2004.

[5] It shall be an unlawful employment practice . . . (j)(1) For an employer, . . . because of . . . sex, . . . to harass an employee, an applicant, or a person providing services pursuant to a contract. . . . Harassment of an employee, an applicant, or a person providing services pursuant to a contract 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. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, or persons providing services pursuant to a contract in the workplace, where the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility which the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.

Because subdivision (j)(1) applies to an employees harassment of a person providing services pursuant to a contract, in the trial court the casino conceded that Sey had standing to sue the casino, even though the casino contended it was not her employer.

[6] Sexual harassment is also prohibited by title VII of the federal Civil Rights Act of 1964 (42 U.S.C.  2000e et seq.). Although the wording of title VII differs in some particulars from the wording of FEHA, the antidiscriminatory objectives and overriding public policy purposes of the two acts are identical. (County of Alameda v. Fair Employment & Housing Com. (1984) 153 Cal.App.3d 499, 504.) [I]n an area of emerging law, such as employment discrimination, it is appropriate to consider federal cases interpreting title VII. (Mogilefsky v. Superior Court, supra, 20 Cal.App.4th at p. 1416, fn. 5.) (Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 517.)