On January 28, 2020 the California Court of Appeal ruled on behalf of Jay Brome, reversing the lower court’s dismissal of his case and sending the matter back to Solano Superior Court for trial. RBGG’s Lisa Ells had argued the case on January 23 on behalf of Brome, an openly gay 20-year veteran of the California Highway Patrol and former Solano County CHP Officer of the Year in 2013, who sued California’s largest law enforcement agency for harassment and discrimination in 2016. Brome’s case was dismissed in 2018 on the grounds that it was filed beyond the one-year statute of limitations, but the RBGG team of Gay Grunfeld, Ben Bien-Kahn, and Lisa Ells took on the matter and filed the successful appeal. The court’s opinion is here: Brome v. CHP Order, 1-28-20
In a unanimous, certified for publication decision by Justice Burns, the court held that there were triable issues of fact on each element of the question whether the filing of a workers compensation claim equitably tolled the Fair Employment & Housing Act (“FEHA”) statute of limitations. The court also applied the continuing violations doctrine to allow Brome to assert his claims and held that he could alternatively prevail under a constructive discharge theory because a “reasonable finder of fact” could find the California Highway Patrol “knowingly permitted the intolerable conditions” to continue and “should have known that a reasonable employee in Brome’s position would resign.”
According to Brome’s appellate brief, “The harassment began during Officer Brome’s academy training, where he faced homophobic slurs and physical threats, and followed him from assignment to assignment – from the CHP’s San Francisco area office, where his career began in 1996, to the CHP’s area offices in Contra Costa and Solano, where he worked from 2008 until the psychological toll of the CHP’s hostile work environment became so intolerable that his doctor ordered him to take medical stress leave on Jan. 15, 2015.”
In briefs filed before the argument, RBGG argued that the Superior Court erred in granting summary judgment and dismissing Officer Brome’s case. The discriminatory and harassing conduct that Officer Brome was subjected to during his final month with the CHP—before his doctor ordered him to take medical stress leave due to the psychological toll of the hostile work environment—was sufficiently similar to the pervasive discriminatory and harassing conduct he had faced for years within the limitations period. The court filings also refuted the alternative argument by CHP that Officer Brome should have realized years earlier that any further efforts to end the harassment short of filing a lawsuit would be futile—effectively arguing that Officer Brome’s lawsuit should be thrown out because he should have concluded earlier that CHP would do nothing to address the discrimination and harassment of gay officers unless they were sued. CHP management repeatedly assured Officer Brome that the agency was looking into the allegations of homophobia and discrimination.
The case has been covered extensively in the media. Selected articles set out below.
Gay man suing CHP for discrimination wins appeal, Bay Area Reporter, February 5, 2020
Appeals court reverses dismissal of CHP officer’s harassment suit, Daily Republic, February 1, 2020
California Highway Patrol must face gay former officer’s discrimination claims, The Recorder, January 30, 2020
State court reinstates suit by gay former officer who says CHP failed to protect him, San Francisco Chronicle, January 29, 2020
Court rules in favor of former CHP officer who says homophobic discrimination drove him out, Sacramento Bee, January 28, 2020
Former CHP Officer’s Civil Suit Alleges Years of Homophobic Abuse, Fox40 Sacramento, March 12, 2019
LGBT law enforcement officers say they’ve faced horrible discrimination, and now they’re suing , USA Today, February 8, 2019
Ex-CHP officer sues over anti-gay harassment, Bay Area Reporter, December 19, 2018
California cop alleges rampant antigay abuse on the job, Advocate, December 8, 2018
His dream to serve the CHP died because he is gay, officer says. Now he’s suing, Sacramento Bee, December 7, 2018
Retired CHP officer files discrimination lawsuit, says he was harassed for being gay, KTVU News, December 7, 2018