The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation against California employees on a variety of bases. The FEHA provides some of the best employment protections in the country, and has been expanded several times over the years to afford additional protections in the workplace. However, one of the greatest hurdles to employees is the statute of limitations. In California, an employee has one year from the date of the unlawful practice to file a charge with the Department of Fair Employment and Housing (“DFEH”). Failure to file a charge within the limitations period waives an employee’s rights to any claims she has under the FEHA. Further complicating matters is that the intake process at the DFEH has several steps and it has been unclear to employees as to when their charge was actually filed, and thus, whether they filed within the one-year period.

On Thursday, Governor Newsom signed AB 9 which extends the one year period to three years starting on January 1, 2020. The bill also specifies filing a complaint means filing an intake form with the DFEH and the operative date of the verified complaint relates back to the filing of the intake form- clarifying what has been a confusing issue for employees over the years. This new statute triples the time an employee has to file their charge, which is particularly valuable for those employees who feel they cannot come forward soon after the adverse employment action.

However, it is important to note that the bill specifically says it will not “be interpreted to revived lapsed claims.” So, if your statute of limitations has already passed, this new extension will not give you any relief. However, if you suffer an adverse employment action (for example, if you are fired) in or after January 2020, the new statute of limitations will apply. The stickier issue is what happens to claims that arose this year, or will arise between now and the end of the year? If you were fired on March 1, 2019, and believe it was due to your gender, you would have until February 2020 to file your charge. But what happens now? Do you have until February 2022 to file your claim? Or, do you still need to file by February 2020?

Normally, when a statute of limitations is increased, it applies prospectively to pending cases. In analyzing the bill, the Senate Judiciary Committee noted: “Applying these rules to this bill, it would automatically extend the time to file for incidents that occurred before the effective date of the change in the law, but for which the limitations period had not yet expired on the date of the enactment.” However, because the law does not make this point entirely clear, we strongly advise that you file as soon as possible to preserve any rights that you may have so that there is no argument that you have failed to file within the statute of limitations period. There are other good reasons to file sooner rather than later too- memories fade, key witnesses move out of state, documents go missing – so if you are considering filing a charge, don’t count on that three year statute just yet.

If you believe you have claim for work place discrimination, harassment, and/or retaliation and would like to discuss your options, contact Siegel LeWitter Malkani at (510)452-5000.

Jean Krasilnikoff

Mr. Santillan filed a grievance which ultimately settled. The terms of the settlement provided that Mr. Santillan would withdraw his grievance and in exchange, he would be reinstated provided that she could pass a drug test, a physical exam, a criminal background check and “e-Verify.” E-Verify is a controversial voluntary system under federal law used to check the work authorization status of employees through federal records. Mr. Santillan passed the drug test, the physical exam and the criminal background checks. He was told to report to work with documentation showing his right to work in the United States. Mr. Santillan returned to work with his driver’s license and social security card. Nonetheless, USA Waste insisted it needed a work authorization number and the expiration date. Mr. Santillan provided his identification number, but according to his employer, could not provide the expiration date. USA Waste terminated Mr. Santillan for a second time.

Mr. Santillan filed a lawsuit based on several claims including age discrimination and wrongful termination in violation of public policy. The trial court dismissed his case holding that Mr. Santillan could not state a prima facie case for discrimination and dismissed his wrongful termination claim holding that Mr. Santillan’s failure to provide the work authorization information that USA Waste demanded within three days was a legitimate non-retaliatory reason for the termination. Mr. Santillan appealed to the Ninth Circuit.

First, the Ninth Circuit reversed the trial court on the age discrimination claim. Santillan v. USA Waste of California, Inc., 2017 WL 1289971 (9th Cir.) The Court explained that Mr. Santillan had established a prima facie case based on his testimony that he was one of five older workers who was terminated under the new supervisor and the thirteen year age gap between him and his replacement. The Court also explained that because Mr. Santillan had established his prima facie case, the burden was on USA Waste to articulate a legitimate non-discriminatory reason for his termination. While normally this is an extraordinarily low burden for employers, the Ninth Circuit held that the reasons USA Waste put forth were not sufficient.

USA Waste claimed that under the Immigration Reform and Control Act of 1986 (“IRCA”) required them to obtain certain documents to ensure that an employee was authorized to work. The Court explained that Mr. Santillan was exempt from the IRCA requirements because those requirements applied to new employees and Mr. Santillan was not a new employee- he was reinstated. The Court also said that Mr. Santillan was exempt from the requirements because he had been hired prior to a date specified in the law. The Court held that “an employer’s incorrect view of the law is not a legitimate reason for firing an employee.”

The Court went even further, holding that the provision of the settlement agreement that required that Mr. Santillan pass e-Verify was void as it violates the public policy of California.

The Court also held that Mr. Santillan had established a prima facie case for wrongful termination in violation of public policy, and held that USA Waste had failed to articulate a legitimate non-retaliatory reason for his termination for the same reasons as in the age discrimination claim- USA Waste had relied on an incorrect interpretation of the law.

This is an important win for employees! Normally, employers are able to easily shift the burden back on employees at summary judgment by articulating any justification for terminating an employee- so long as the reason is not discriminatory or retaliatory. However, the Ninth Circuit’s decision suggests that courts should look more closely at whether an employer’s seemingly legitimate justification is actually legitimate.

Jean Krasilnikoff

The court ruled that only employees, not applicants could bring a disparate impact claim under the Age Discrimination in Employment Act (ADEA). The court rejected a class action lawsuit against the company that had a hiring policy targeting applicants who were “2-3 years out of college”, “adjusts easily to changes.” In screening applicants, the policy was to “stay away from” applicants who had been “in sales for 8-10 years.” While this decision was a hard blow to applicants in the Eleventh Circuit, it does not apply once and employee is hired and becomes an employee.

Fortunately, this bad decision does not affect California employees. The Ninth Circuit, which covers California, and California state courts have a much more employee (and applicant)-friendly approach. In California, applicants may still bring an ADEA claim by alleging that a hiring practice disparately affects a protected class. In fact, there is a similar class action case for age discrimination in hiring currently pending in the Northern District Court of California. So far, two attempts by Google to defeat class certification for those claims have not been successful. Robert Heath, et al. v. Google Inc., Case No. 5:15-cv-01824.

In addition to the protections offered by the federal law for older workers, California also provides protection from discrimination for workers over 40 years old under the Fair Employment and Housing Act (FEHA). The good news for California employees is that despite a bad decision in the Eleventh Circuit, employees and applicants are protected against age discrimination in California!

Jean Krasilnikoff October 28, 2016

Schechner and Lobertini put forward substantial statistical evidence that they hoped would convince a jury that their selection for layoff was discriminatory. Their lawyers hired a statistician who determined that there was a statistically significant correlation between the age of the employees and their selection for lay off.

Both the district court and the court of appeals found that the employees had not met their burden of proof and dismissed the case on summary judgment. Schechner v. KPIX-TV, 686 F.3d 1018 (Ninth Cir., May 29, 2012). Although the Ninth Circuit clarified that statistical evidence can be used to meet an employee’s prima facie burden of proof in a discrimination case and that the burden of proof is “minimal,” it still ruled against the employees in this case. The Ninth Circuit noted that the same managers who made the decision to lay off Schechner and Lobertini also made the decision to renew their employment contracts shortly beforehand and thus the TV station was entitled to the “same-actor infererence.”

This case does not really change the laws on age discrimination and indeed, it can be used to support the proposition that statistical evidence is a valid methodology to prove discrimination. However, this case is also a cautionary tale that each case must be determined on its own facts, and sometimes courts rule in ways that are unexpected – making factual decisions and interpretations that are better left to the jurors.

Jody I. LeWitter September 7, 2012

Earl appealed the granting of summary judgment and claimed that circumstantial evidenced established that her firing was a pretext for age discrimination. The Ninth Circuit agreed, primarily relying on the fact that similarly situated younger employees were treated more leniently. In doing so, the Ninth Circuit provided a more practical and plaintiff-friendly definition of “similarly situated employees” (including what constitutes similarly situated conduct), making it more difficult for defendants to slice and dice the conduct in question and claim that the comparative younger employees were not really similarly situated.

The Earl v. Nielsen case rejected the notion that to be similarly situated the (younger) employees in question have to violate the exact same policy or commits the exact same transgression. Looking at factors such as whether the policy serves the same purpose and is of comparable seriousness, the Court counseled for the use of a “common sense” approach. Here the younger comparators signed up houses that did not meet Nielsen’s criteria, whereas Earl’s recruits met the criteria but she recorded an incorrect address. The Court found that these were comparators as they were similarly situated and/or committed similar transgressions. The court rejected the notion that the conduct of the comparators must be identical.

The Court also clarified that substantially younger employees can include employees who are themselves within the protected class, that is, employees who are over 40 years of age. Where Ms. Earl was 59 years old, a 42 year old was substantially younger for purposes of the age discrimination.

Lastly, the Court addressed the question of whether failure to follow company policies and procedures provides evidence of pretext, holding that it does. The Court found that plaintiff presented sufficient evidence to suggest that company policy and procedure required the institution of a PIP, not just a DIP, prior to termination. Thus, the fact that Ms. Earl was put on a DIP prior to her termination, rather than a PIP, was a violation of company policy which serves as further evidence of pretext. The Court did note that, regardless of whether Ms. Earl presented sufficient evidence that company policies and procedures required a pre-termination PIP, since the company said it did so for a younger employee, the evidence clearly demonstrated that younger employees were treated more leniently. This itself was an alternative grounds for establishing pretext, the pretext being that that younger employees were treated more favorably, regardless of whether company policy or procedure so required it. This case warns wayward lower courts not to toss out discrimination cases by making their own findings regarding “motivation and intent,” instead of leaving these fact intensive questions where they should remain, shall remain and hopefully always do remain: with the fact finder, and preferably the jury.

Jody LeWitter October 18, 2011

In upholding the Court of Appeals’ reversal of the trial court, the California Supreme Court reminded the lower courts that they not use the “stray remarks doctrine” to bar otherwise probative evidence of discrimination, and that the courts should remember that the jury is the trier of fact, not the judge.

This commonsense approach should help to restore an even-keeled and balanced approach to the determination of whether a decision made by an employer was discriminatory or not. As stated by the California Supreme Court, cases in California have considered discriminatory remarks “in totality with the other circumstances of the case.” Further, as is obvious, cases have noted that, “An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination.” Lastly, the Court thankfully permitted the introduction of statements made in the work place that the jury should be permitted to hear in this case, including comments that Mr. Reid was “obsolete…too old to matter…slow…fuzzy…sluggish…lethargic….and that he did not display a sense of urgency.” Thank goodness, the California Supreme Court decided that ageist statement can be considered in an age discrimination case!

Jody LeWitter Siegel & LeWitter jlewitter@sl-employmentlaw.com