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Renee Thomas is a “well-regarded soccer player” who was recruited by University of California, Berkeley (UCB) head coach Neil McGuire to play in the 2018-2019 season. McGuire knew at the time that Thomas had already committed to play for the University of Colorado, which had offered her a scholarship. At a meeting with Thomas and her mother in February 2018, McGuire “assured” Thomas that she would be on UCB’s women’s soccer team for four years.

Thomas turned down her scholarship to the University of Colorado to accept a non-scholarship spot on UCB’s team based on McGuire’s “assurances that she was joining a four-year soccer program, that she would play on the team as long as she met the reasonable performance expectations of the program, and that she would be coached in a caring and encouraging manner.”

Thomas joined the team as one of six non-scholarship players, performed well, complied with the expectations McGuire laid out for her and “participated in every opportunity available to her to improve her performance.” McGuire told her she was “promising enough to rival the best-performing forward on the team” and she was honored at the team’s annual banquet as the most improved player.

During the 2018-2019 season, Thomas “experienced and witnessed” abusive behavior by McGuire. McGuire lost his temper at the athletes “on many occasions,” “[i]n fits of rage, he singled out athletes and berated them in front of the team, sometimes nonsensically, to make an example of them and strike fear in the witnessing athletes,” he “called young female athletes names, cursed at them, and degraded them with personal insults both related and unrelated to athletic performance,” and he “tormented them psychologically and punished them with grueling workouts.”

On April 29, 2019, “without warning or explanation,” McGuire released Thomas and four others from the team. It was “rare” for McGuire to release players from the team and “quite unusual that he released five players at once.”

Thomas initially filed a complaint in federal court alleging disparate treatment of the UCB men’s and women’s soccer teams in violation of United States Code title IX (20 U.S.C. § 1681 et seq.) (Title IX) and California Education Code section 66271.8, gender discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51) (Unruh Act), and negligence and negligent infliction of emotional distress, all based on her unjustifiable release from the team. The federal district court dismissed the first amended complaint without leave to amend, finding Thomas failed to state any of her claims and leave to amend would be futile.

Thomas then filed her complaint in California Superior Court on September 11, 2020, alleging claims against McGuire and Jim Knowlton, UCB’s Athletic Director, for violation of the Unruh Act and negligence, and against McGuire for breach of fiduciary duty and fraud. She subsequently filed a first amended complaint adding that UCB was liable pursuant to Government Code section 815.2. The defendants demurred.

The trial court sustained the demurrer with leave to amend only the fraud claim against McGuire. The court held that Thomas failed to state causes of action for violation of the Unruh Act or Civil Code section 51.9 (which Thomas argued was actually the basis for her Unruh Act claim), negligence or breach of fiduciary duty, and that the fraud claim against UCB was barred by governmental immunity (Gov. Code, § 818.8 [public entity not liable for employee’s misrepresentation]).

Thomas’s second amended complaint, was filed on July 6, 2021. The trial court adopted its tentative ruling sustaining another demurrer without leave to amend, finding that Thomas failed to allege all the required elements of a cause of action for fraud and McGuire was entitled to public employee misrepresentation immunity (Gov. Code, § 822.2).

Thomas appealed the dismissal. The Court of Appeal concluded Thomas sufficiently pleaded a cause of action for sexual harassment in violation of Civil Code section 51.9 against the head coach and UCB and should have been granted leave to amend her complaint to clarify the statutory basis of this claim. In all other respects it affirmed the trial court’s decision in the published case of Thomas v. The Regents of the University of Cal -A164550 (November 2023).

The first cause of action in Thomas’s first amended complaint alleged violation of the Unruh Act. Civil Code section 51, provides: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (b).)

Thomas alleged that McGuire and Knowlton “engaged in unreasonable, arbitrary, and invidious discrimination” against her and “denied her full and equal privileges as compared with male athletes”; her gender was a “substantial motivating reason” for McGuire’s and Knowlton’s conduct; and UCB was liable for unlawful actions of its employees under Government Code section 815.2.

As developed in the employment context, federal and state law generally recognizes two theories of liability for sexual harassment claims, quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances and hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment. (Hughes v. Pair (2009) 46 Cal.4th 1035 at p. 1043.) The present case involves the “hostile environment form of sexual harassment.”

In the employment context, the plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended. The plaintiff must show that the harassing conduct took place because of the plaintiff’s sex, but need not show that the conduct was motivated by sexual desire. (Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, 1557)

Harassment “because of sex” may be shown where “an abusive bully takes advantage of a traditionally female workplace because he is more comfortable when bullying women than when bullying men.” (E.E.O.C. v. National Educ. Ass’n, Alaska (9th Cir. 2005) 422 F.3d 840, 845 (E.E.O.C.).)

To plead a cause of action for sexual harassment in the form of a hostile environment, “it is ‘only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner.”

The Court of Appeal concluded that Plaintiff’s “allegations unquestionably describe pervasive bullying behavior toward the young women on the soccer team that created a hostile environment.”

“The defendants argue (and the trial court concluded) that they do not allege pervasive sexual harassment because the alleged conduct and comments were not of a sexual or hostile gender-based nature. We disagree. As we have explained, ‘there is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures.‘ ”