Robert Smith v. BP Lubricants USA Inc. et al. - E073174 - 07/11/2019

In Smith v. BP Lubricants, USA Inc. , plaintiff Smith was an employee at a Jiffy Lube and is African-American.  He was subjected to racist comments during a presentation by an employee of Castrol (BP Lubricants USA, Inc.) to about 50 other Jiffy Lube employees:  

First, when Smith asked a question, the presenter said "You sound like Barry White."  Later, the presenter said "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?" Finally, when Smith asked another question, the presenter responded, “What, I can’t see your eyes, what?"  

After each of these comments, the non-African Americans in attendance laughed.  The plaintiff found the comments offensive and based upon his race.  When he spoke with his employer about it, his employer told him to "let it go" and "Let’s push this under the carpet." 

Smith alleged "he suffered significant physical and mental health problems because of his 'work-related issues,' which required medical attention."

Smith sued Castrol and the Court held: Smith did not state a claim under FEHA (California law that prohibits employment and housing discrimination) because Castrol was not Smith's employer and did not "aid and abet" discrimination by Smith's employer.

The Court (Justice Carol D. Codrington) held Smith stated a claim for violation of the Unruh Act which prohibits discrimination based upon race (and other categories) in all business establishments.  Castrol argued that its promotional presentation was not as part of a "business establishment," but the court reasoned the Unruh Act was to be broadly construed and Smith and his employer were effectively Catrol's customers.  Catrol argued that the Unruh Act should not apply to racist offensive comments that should not be considered "discrimination."  The court reasoned that harassment is a form of discrimination because it amounts to "a business establishment treating its patrons unequally."

The Court held Smith stated a claim for intentional infliction of emotional distress because it was for a jury to decide if the racists comments were "so extreme as to exceed all bounds of that usually tolerated in a civilized community."  The court reasoned that while "insulting language, without more," ordinarily would not satisfy the necessary outrageous conduct, the use of racial epithets coupled with aggravating circumstances does and pointed to two cases where the plaintiff was called a "n---er"by a supervisor while threatened with being fired, and then causing the plaintiff to be fired.

This is the weakest part of the opinion.  While the "Barry White"/"Banana Hands" comments were rude and likely racist, they were not equivalent to the "racial epithets" referenced in other cases.  Racist comments by someone who cannot end your employment is very different from being called the n-word by your employer/supervisor accompanied by the threat of being fired.   As discussed in Agarwal v. Johnson (1979) 25 Cal.3d 932, 946, "Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress." The Castrol employee was not Smith's employer, did not have reason to know Smith was particularly susceptible to mental distress, and there is no facts to suggest he thought the comments would "likely result in illness."  Is there any evidence that a single-event of racist comments is "likely" to cause actual "illness"? 

Much of the Smith's severe distress is more directly traced to co-workers who laughed at the comments (and repeated them) and his employer, who did not support Smith during or after the presentation.  It is one thing to be insulted by some transient interloper, it is quite another when people close to you, and have power over your day-to-day life, do not support you.

This decision is an expansion of potential liability for statements that can be construed as racist, but the decision does not appear to appreciate the change.

Further, as reflected in the other two claims at issue on appeal, California has legislated on the issues of harassment and discrimination in employment and public accommodations so there is less justification for courts to expand the tort claim of intentional infliction of emotional distress to cover the same ground.