“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.” “An employer who fires an individual merely for being gay or transgender defies the law.”

In today’s decision in Bostock v. Clayton County, Georgia, the Supreme Court made clear that the anti-discrimination protections of Title VII apply to LGBTQ+ persons across the country.

This important decision came out of three cases. Gerald Bostock worked as a child welfare advocate in Clayton County, Georgia for a decade. After he joined a gay softball league, he was fired for conduct “unbecoming” a county employee. In his case, the Eleventh Circuit decided that Title VII does not prohibit employer from firing employees for being gay.

Donald Zarda was a skydiving instructor in New York. Days after mentioning to his employer that he was gay, he was fired. The Second Circuit determined that his firing was illegal under Title VII.

Aimee Stephens worked for a funeral home in Garden City, Michigan. When she started her position, Ms. Stephens presented as male. Two years later, she informed her employer that she was going to begin living and working full time as a woman. The funeral home fired her telling her “this is not going to work out.” The Sixth Circuit reached a decision that Title VII bars employers from firing employees because of their transgender status.

The Supreme Court agreed to hear the cases to finally resolve that Title VII protections extend to LGBTQ+ persons.

The employers made numerous arguments that were soundly rejected by the Court. The majority opinion explained that the plain language of Title VII protects LGBTQ+ persons: “As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.” In rejecting the employers’ argument that Congress did not intend Title VII to apply to discrimination based on being LGBTQ+, the Court responded: “In fact, many now-obvious applications [of Title VII] met with heated opposition early on, even among those tasked with enforcing the law.”

Prior to today’s decision, only 21 states (as well as the District of Columbia, Guam, and Puerto Rico) had laws explicitly banning workplace discrimination based on sexual orientation and gender identity. Although California was one of the states that explicitly prohibits discrimination against LGBTQ+ employees, the anti-discrimination protections now apply across the country.

In 2017, the California Department of Fair Employment and Housing added new regulations which expanded the Fair Employment and Housing Act to explicitly prohibit discrimination on the bases of gender, gender identity, gender expression, and transgender persons. At the time, we wrote a blog post about those changes, as well as the Justice Department’s brief in Mr. Zarda’s case. Three years later, the Supreme Court has now made clear that employers cannot fire employees because they are LGBTQ+. As the Supreme Court indicated, this decision has been a long time coming. We agree, and are happy that this decision comes during Pride month.

If you believe that you have been subjected to discrimination at work because you are LGBTQ+, please contact our offices to discuss what options you may have.

High-risk employees include any employees over 65 years of age.

High-risk employees also include employees who have conditions the Center for Disease Control (CDC) has found make them at high-risk for COVID-19. CDC website

This includes employees with any of the following medical conditions: liver disease, chronic kidney disease undergoing dialysis, diabetes, severe obesity (body mass index measuring 40 or more), serious heart conditions, chronic lung disease, or asthma that is moderate or severe.

High-risk employees are also those who are immunocompromised. According to the CDC, many conditions can cause an employee to be immunocompromised, so talk to your doctor about whether you are immunocompromised. The CDC’s current website includes the following as examples of conditions that cause people to be immunocompromised: smoking, cancer treatments, bone marrow and or organ transplants, HIV or AIDS that is not well controlled, and long term use of medications that weaken the immune system.

If you are high-risk, be sure to request a reasonable accommodation from your employer. Your employer is obligated to engage in an interactive process with you to determine whether there is a reasonable accommodation for you. Types of reasonable accommodations, depending upon your job and other factors, may include working from home, eliminating job functions that are not essential, time off, or a flexible work schedule. The EEOC specifically urges employers and employees to look for creative and flexible solutions that permit you to do your job safely.

An employer cannot retaliate against you or terminate your employment because you ask for a reasonable accommodation because you are a high-risk employee. If your employer does, reach out to Siegel LeWitter Malkani for advice and be safe!

Sick with or Exposed to COVID-19

In California, the California Family Rights Act (“CFRA”) provide up to 12 weeks of unpaid job protected leave within a 12 month period to care for yourself or your immediate family if they have a serious health condition. A serious health condition includes any illness that causes any period of incapacity requiring absence from work, school, or other regular daily activities for more than 3 consecutive days. To be eligible for CFRA leave, you must have been employed with your employer for 12 months and you must have worked at least 1250 hours in that twelve month period and your employer must employ 50 or more people within a 75 mile radius. While the CFRA does not provide pay, other laws may provide wage replacement, and your employer may also have other benefits and programs that you may be able to utilize during this time.

If you are unable to work because you have been diagnosed with or if you have been exposed to COVID-19 (certified by a medical professional) you can apply for disability insurance which will cover partial wage replacement. Contact your doctor for assistance with a medical certification if you believe you have, or have been exposed to COVID-19. While there is normally a one-week unpaid waiting period that period has been waived under the Governor’s Executive Order. EDD Website

If you have paid sick leave available, your employer must provide the leave and compensate you under the California paid sick leave laws. You may use sick leave for absences due to your own illness or the care of a family member. California Department of Labor Standards Enforcement

Caregiving

As described above, you may be entitled to job-protected leave if you are caring for an immediate family member who has COVID-19 under the California Family Rights Act. (See above.) CFRA is unpaid leave so below are some options on obtaining wage replacement if you are caring for a family member.

If you are unable to work because you are caring for an ill or quarantined family member (child, parent parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner) with COVID-19 (certified by a medical professional) you can file a Paid Family Leave (PFL) claim. PFL provides for six weeks of benefits to eligible workers. EDD Website

With lots of schools closing, many parents are unable to work because they need to care for their children. If this is the case, you may be entitled to unemployment insurance benefits. However, there are eligibility requirements including whether you have any other care options and/or if you can continue working your normal hours remotely. You should contact an EDD representative to determine eligibility. EDD Website

If you work at a worksite with 25 or more employees, you may also be entitled to 40 hours of leave per year for school-related emergencies, including the closure of school or daycare by civil authorities. Whether the leave is paid or unpaid depends on the employer’s policies. You may be required to use your vacation or paid time off before you are allowed to take unpaid leave but the employer cannot require you to use paid sick leave. DLSE Website Reduced Work Hours

If your employer has reduced your hours or shut down operations due to COVID-19 you can file a claim for unemployment insurance, which provides wage replacement benefits. This is true for workers who have lost their job, or who have had their hours reduced through no fault of their own. Again, the normal one-week unpaid waiting period is waived. EDD Website

Other Wage Replacement

If you do not have any sick leave available, or if you do not have enough available to cover the amount of time you are out of work, you can use any other leave that is available to you based on your employer’s policies. For example, you may have vacation or paid time off that you may utilize. DLSE Website

If you are in a union, you may also be eligible for other kinds of compensation. You should check your union’s website, and/or with your union representative.

Discrimination & Retaliation

The question of what will happen if your employer discriminates against you or retaliates against you for having COVID-19 does not have a clear answer. Under California law, an employer cannot discriminate against you because you have, or the employer perceives you as having any physical disability, mental disability, and/or medical condition. However, the Fair Employment and Housing Act does not cover “mild” conditions that have little or no residual effect- including things like colds, seasonal flu, and minor or nonchronic gastrointestinal disorders. Because COVID-19 is a novel virus, and the impact is different for different people, whether or not it will be considered a disability under the Fair Employment and Housing Act will likely depend on how the virus impacts you.

Because this virus originated in China, we have heard some reports of discrimination against people based on their national origin, race, and ethnicity. Discrimination on these bases is prohibited by both California and federal law. If you believe you have been discriminated against based on your national origin, race, and/or ethnicity, contact our office so we can help evaluate any clams you may have.

It is illegal for an employer to interfere with any eligible employee’s right to take leave under the California Family Rights Act or discriminating or retaliating against an employee for taking a leave. If you are eligible for leave, and are discouraged or prohibited from taking it, and/or if you are retaliated against after taking leave, please call our office so we can discuss any claims you may have.

The state of California, as well as cities and counties, are continuing to put out updated information and recommendations so be sure to check the California and local authorities for updates. Other resources you may wish to consult are:

• https://www.cdc.gov/
• https://www.dir.ca.gov/dlse/
• https://www.dir.ca.gov/dosh/

When an employment situation sours and an employee pursues his rights, usually at some point there is talk of settlement. Almost routinely, employers include a no-rehire provision in any settlement agreement which prohibits the former employee from seeking reemployment with the employer. While this may not seem like a big deal if you work for a small company and have no intention of seeking reemployment with the same people who wronged you in the first place, for individuals who work for large employers, the no-hire provision can create significant hardship. For example, if you work for a major retailer with numerous locations and you are terminated, a no-rehire provision might prevent you from working for that company ever again, in any capacity. That means, even if you wanted to work for a store 100 miles away, you would be barred from doing so. This is particularly problematic for long-term employees who have deep knowledge of the employer’s policies and practices and have been successful in their positions for years- they know the job, and have done it well, and now they are unable to apply for any future job at the company where their skills are a perfect match. This is also a significant problem for people who work for a utility; it may be that there is really only one employer in the area you can work for and a ban on working for that company will prevent you from working, period. The no-rehire provision would require you to either move to a new location or develop skills for an entirely different field. It seems, to many employees, like a final act of retaliation by their former employer.

Starting January 1, 2020, employment dispute settlement agreements cannot contain a no-rehire provision and such provisions are void as a matter of law and public policy. There is an exception, undoubtedly inspired by the #MeToo and #TimesUp movements- if an employer has made a good faith determination that the terminated employee engaged in sexual harassment or sexual assault, the employer may prohibit or restrict the terminated employee from obtaining future employment with the employer.

The new prohibition on no-rehire provisions eliminates a punitive and sometimes career-ending tool that employers routinely employ and is a victory for workers in California. As employee-advocates we are thrilled with this new law; employees who stand up for their rights no longer have to give up potential future employment just because they did so.

Jean Krasilnikoff

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

It is common practice throughout California to have an employee sign an arbitration agreement at the time she is hired. These agreements are generally non-negotiable, buried in a pile of new hire paperwork, and require the employee to arbitrate any claims arising out of employment. While valid arbitration agreements provide some of the safeguards that are afforded to litigants in court, it often takes away basic protections and rights including a trial by jury, and class or collective action. Arbitration is also a private process so it allows an employer to keep their wrongdoing under wraps.

The United States Supreme Court has said, repeatedly, that arbitration agreements are valid in the employment context. Recognizing the inherent imbalance in power between employers and employees, several states have tried to stop employers from forcing employees into arbitration. However, given the Supreme Court’s rulings, it is impossible to ban arbitration in employment altogether. The hope is that in California, AB 51 will even the playing field before an employee signs an arbitration agreement; requiring that an employee can only enter such an agreement voluntarily. The law also prohibits an employer from retaliating against an employee who declines to enter into an arbitration agreement, which provides additional protection.

Another significant benefit of the law is that attorneys’ fees are available to prevailing plaintiffs for violations of the law. This is an important piece of the legislation as the availability of attorneys’ fees greatly impacts the ability of plaintiffs’ firms to actually take and litigate these claims. It also provides a valuable bargaining chip in settlement negotiations.

While we expect that there will be legal challenges to AB 51, come January 1, 2020, employees have expanded and important rights with respect to whether they agree to enter into an arbitration agreement. While worker protections at the federal level are being chipped away, in California AB 51 is a significant step in the right direction to preserving employee rights in the workplace.

Jean Krasilnikoff

This sounds like the beginning of a very typical workplace claim. However the Court brought the civil claims to a very atypical, and I must say, poorly reasoned and dangerous, ending.

The Workers Compensation Act claim went to a hearing first and the Administrative Law Judge found that the employer’s actions were “non-discriminatory, good faith personnel decisions.” Based on this finding in an administrative hearing, where there is no civil discovery, the impetus to put on witnesses and gather evidence is different, and, among many other differences, the legal standard is different, the Court of Appeals held that the employees’ civil claims were barred.

The Court acknowledged that workers’ compensation is not the exclusive remedy for discrimination in the workplace, but went on to hold that where “plaintiff’s elected to pursue both remedies… the workers compensation decisions have a reclusive effect.”

In other words, the Court is making an employee who dares to bring two claims face an unnecessary and unwarranted risk. Employees must carefully consider whether to file in two forums and which case is likely to be decided first.

Jody I. LeWitter

Employers are permitted to set grooming standards for their employees and those standards may differ for male and female employees. Over ten years ago, the Ninth Circuit Court of Appeals held that: “Grooming standards that appropriately differentiate between the genders are not facially discriminatory.” Jespersen v. Harrah’s Operating Co., Inc. (9th Cir. 2006) 444 F.3d 1104. In that case, Harrah’s casino had a “personal best” grooming policy that required all of its bartenders to wear the same uniform but had differing policies for men and women with respect to their hair, hands and face. Men were not permitted to wear make-up and were required to have short hair and women were required to wear eye and face make up. A female employee objected to the requirement that she wear make-up and brought a claim under Title VII for sex stereotyping. In a controversial opinion, the Court determined that the differences in the grooming policy for men and women did not give rise to a sex stereotyping claim.

However, Courts have found violations of Title VII where there is an “undue burden” placed on female employees that is not placed on male employees. In Frank v. United Airlines (9th Cir. 2000) 216 F.3d 845, female flight attendants were required to stay under a certain weight in order to keep their jobs. Many of the female flight attendants went on extreme diets to try to make the cut but were unsuccessful in losing enough weight. As a result, they were disciplined and/or terminated. The Court held that United’s policy had a disparate impact on women and was facially discriminatory because it applied less favorably to women than to men.

Likewise, an “attractiveness” standard that imposes greater requirements of one sex than on the opposite sex “constitutes unlawful sexual discrimination unless such differential treatment can be justified as a bona fide occupational qualification.” Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028. Courts have not had much opportunity to determine when differential treatment may be a bona fide occupational qualification but this exception is extremely narrow and the burden is on the employer to show why the differential treatment is necessary – a heavy burden for most jobs!

It is also a violation of both Title VII and California’s Fair Employment and Housing Act to discriminate based on stereotypes about gender. In Price Waterhouse v. Hopkins (1989) 490 U.S. 228, an undeniably exceptional female employee was up for partnership. In assessing her for partnership, the evaluators criticized her for being “macho,” advised she should take “a course at charm school” and suggested she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Supreme Court held, that employment decisions based on gender stereotypes are unlawful.

If you feel you have suffered discrimination based on grooming standards or gender stereotyping, contact us today.

Jean Krasilnikoff

In this case, Abercrombie refused to hire a young Muslim woman named Samantha Elauf to work in one of its retail clothing stores because Ms. Elauf wore a headscarf. Abercrombie suspected that Ms. Elauf wore the headscarf in observance of her Muslim faith and simply did not want to accommodate the headscarf, claiming that it would violate the company’s “look policy” (which forbade employees from wearing “caps”). When the EEOC sued Abercrombie on behalf of Ms. Elauf for failing to make a reasonable accommodation for her religion, the company defended its actions by arguing that it did not “actually know” that the headscarf was a religious practice – it merely suspected that it was a religious practice. In other words, Abercrombie made the absurd argument that even though it actually believed the headscarf was a religious practice and the headscarf was indeed a religious practice, the company should nevertheless be allowed to discriminate against Ms. Elauf because Ms. Elauf did not specifically tell the company that the headscarf was a religious practice.

Luckily, the U.S. Supreme Court did not buy Abercrombie’s argument. The Court’s decision makes it clear that employers may not make employment decisions that are “motivated” by someone’s actual religious beliefs or practices, nor can it refuse to make reasonable accommodations for such religious practices, by simply claiming that the employee (or job applicant) never explicitly confirmed the company’s suspicions regarding their religious beliefs or practices.

Nevertheless, if you are an employee who needs a religious accommodation, you may be better off making your need clear to the employer so that the employer cannot later claim that it had no idea you needed an accommodation. If you need advice or information about requesting a religious accommodation, you may need to consult with an employment attorney.

June 11, 2015 Heather Conger

First, in May 2013, the California Supreme Court declared that the standard of “substantial motivating factor” would replace the previously accepted “a motivating factor” in mixed motive cases under California law. Harris v. City of Santa Monica, 56 Cal.4th 203 (2013). (Mixed motive cases are cases where the employee proves there was discrimination, but the employer proves it would have made the same decision even without this discriminatory animus).

Although the language in Harris was broadly stated, it wasn’t one hundred percent clear whether this standard applied to all discrimination cases under California law, or just mixed motive cases. Along comes Alamo v. Practice Management Information Corporation (2013) 219 Cal.4th 466, holding that the Harris decision applies to almost all employment discrimination cases, thus hammering a nail in the coffin of “a motivating factor” standard under California law. In other words, in an employment discrimination case, although discrimination need not be the sole reason for the wrongful act – it must be a “substantial motivating factor”.

We who represent employees never like it when a court gratuitously makes the standards that govern employment discrimination cases more difficult to meet. Hence, it is important to analyze what this standard will mean as a practical matter. First, there is prior case law that defines “substantial motivating factor” in a way that clarifies that this standard really shouldn’t be more onerous. See for example, Rutherford v. Owens-Illinois, Inc., (1997) 16 Cal.4th 953, 969 (substantial motivating factor is more than an infinitesimal or theoretical reason). Second, for purposes of summary judgment (i.e. a judge deciding whether a case should go forward to a jury) hopefully judges will have the general intelligence to see that – since the question of discrimination is really for the jury – this slight change in standard should not impact the judge’s decision. Third, in terms of a jury’s decision, it is a bit difficult to think that jurors will find for an employee if they don’t think the discrimination was substantial.

Now, however, whenever you file a discrimination claim in California, it is worth considering whether you should also pursue a federal claim, in addition to the state claims. This is because federal claims for race, religion, sex or national origin discrimination will be governed by “a motivating factor” standard, because that standard is written right into the statute. USC §2000e-2. Of course, in doing so, you may find yourself removed to federal court . Thus, the pros and cons of federal versus state court have to be carefully balanced against the more liberal causation standard.

I’m not happy that the California courts did this. It seems absurd to judicially make the standard more strict than the federal statutory standard, but let’s keep our fingers crossed on the day-to-day impact of this. Jody LeWitter November 1, 2013

The reason this “me too” evidence is admissible is because it demonstrates the intent or motive of the decision maker or wrongdoer. It may also cast doubt upon the employer’s stated reason for the termination or other employment action.

Along comes Hatai v. Department of Transportation (March 3, 2013) ___Cal.4th_____, which casts a slightly different variation on the same theme. It also cautions employees and their lawyers to be exceedingly careful on how they plead a claim of discrimination, if they want to submit “me too” evidence.

Mr. Hatai’s complaint alleged that he was discriminated against due to his national origin (Japanese) and his race (Asian). However, as the case proceeded, Mr. Hatai sought to argue that his supervisor, who was of Arab descent, discriminated against all employees who were not of Arab descent. As such, he sought to introduce “me too” evidence that other employees were discriminated against because they were not of Arab descent.

The company objected to the evidence, stating that the employee was “…repositioning the case.” The trial court prohibited the employee from introducing this evidence, simply stating “[t]hat’s not what you said in your complaint.” Mr. Hatai’s lawyers protested that the supervisor in question stated that “We Arabs should stick together”, and sought to introduce evidence as to how a number of non-Arab employees were treated.

The Court of Appeals agreed with the employer in a scathing opinion, taking Mr. Hatai to task for providing “highly inconsistent” deposition testimony. It held that since Mr. Hatai’s complaint alleged discrimination based on his race/national origin as an Asian and/or Japanese, how a variety of employees who were not Asian and/or Japanese were treated was not relevant.

The cautionary tale here is to be careful how you plead your case. If Mr. Hatai had originally pled his case to allege an alternative basis for discrimination as discrimination because he was not an Arab, perhaps the Court would have permitted this “me too” evidence.

The second cautionary tale is to be careful about presenting consistent and credible evidence: Throughout almost every line of this opinion, it is clear that the Court was indignant about a variety of inconsistent and possibly less than credible positions, and that this unduly influenced the Court’s holding. If the Court had sympathy for Mr. Hatai, it could have simply permitted him to amend his complaint, or construed his complaint more broadly, rather than in the narrow and technical manner it did.

Bad facts here made for bad law, and both the employee and the Court need to take some responsibility for this here. Moving forward, employees should still seek to introduce “me too” evidence, and to plead their claims as broadly as possible.

Jody I. LeWitter April 19, 2013

Although federal law for a while has gone through several iterations of a judicially carve out for employers (a “free day for discrimination” type of defense) called a mixed motive defense, our California state law has not. At times federal law gave employers a free ride where an employer discriminated, but could prove that it would have taken the same action anyhow. Price Waterhouse v. Hopkins (1989) 490 U.S. 288. That law was amended by statute, splitting the baby, so that there is a cause of action in this situation but damages are limited to injunctive relief and attorneys fees, which is not much solace to the employee who faced this discrimination. 42 U.S.C. Section 2000e-5(g)(2)(B).

The California Supreme Court just made a mixed up jumble of this mixed motive law in Harris v City of Santa Monica (2013) 13 C.D.O.S. 1516. In a somewhat tortured analysis, it slopped and slid through the law, without a lot of clarity as to what exactly are the changes it intended to make. Its holding was and should be limited to a mixed motive case – i.e. a case where the employer can prove both illegitimate (discriminatory) and legitimate reasons motivated the decision. In that case it held that a plaintiff must prove that discrimination “was a substantial motivating factor” in the decision, the employer must then prove that it would have made the same decision in any event, and if so, the plaintiff is entitled to only injunctive relief and attorney’s fees and costs, as with federal law.

However, when repeated that a plaintiff must prove that discrimination “was a substantial motivating factor”, it left this standard floating out there, possibly suggesting it meant to apply this newly created standard to all cases, not just mixed motive cases. Why would the California Supreme Court do that? It relied on law related to causation, but the standard California jury instructions already state that the conduct “was a substantial factor in causing plaintiff’s harm” so the jury already knows that. CACI 2500(6). And when the Court describes what “a substantial motivating reason” is, perhaps it isn’t any different that “a motivating reason”, but who can tell based on this opinion? The opinion promotes lack of clarity instead of providing clarity! Add mud and stir, so thanks a lot, Supremes!

Jody LeWitter February 15, 2013

Mr. Rickards had a claim for discrimination against his employer, UPS. The first hurdle in an employment case in the State of California is generally to file a charge of discrimination with the California Department of Fair Employment & Housing (“DFEH”)(depending on the circumstances, an employee may instead file with the Equal Employment Opportunity Commission, and ask that the claim be cross filed with the DFEH). For an employee who has a lawyer and intends to sue, there is generally no productive reason to file such a charge, except that failure to do so may be a fatal flaw in the subsequent lawsuit.

The Department of Fair Employment & Housing set up an online process by which a lawyer can file a charge of discrimination online for an employee. According to the DFEH, this process is set up for employees who have lawyers. As part of the filing, the employee (or lawyer!!) fills out an online form and moves from screen to screen including a screen that acknowledges that the signature is “…under Penalty of Perjury”. Previous case law had already established that an attorney may verify a charge of discrimination with the DFEH on behalf of the client. Blum v. Superior Court (2006) 141 Cal.App.4th 418.

So when Mr. Rickards’ attorney filed his charge online with the DFEH, what could the problem be? UPS acknowledged that the attorney could sign on behalf of the client, but claimed that – due to the nature of the online system – the attorney didn’t really “sign”. UPS was living in the past, or at least hoping that the court was living in the past. UPS tried to argue a fine technicality claiming that the lawyer needed to use ink, or maybe fountain pens, in order to create a signature.

Relying on the Uniform Electronic Transactions Act (Civil Code § 1633.1 et seq.) the California Court of Appeals rejected this position and held that no physical signature was necessary.

Although the use of the administrative process can be helpful for an employee, especially where he or she doesn’t have an attorney, or doesn’t intend to go to court, there is no reason to make an employee jump through unnecessary hoops to get his or her day in court!

Jody LeWitter August 1, 2012

Flaum Appetizing Corporation, 357 NLRB No. 162 (Dec. 30, 2011) has put some procedural brakes on this railroad by holding that an employer who claims that it need not pay backpay because an employee is not authorized to work in the U.S. cannot just make such a claim up out of whole cloth. The employer must set forth with specificity the basis for this defense. The opinion observed that, to hold otherwise, would permit a “fishing expedition”, relying on its decision in Murcel Manufacturing Corp., 231 NLRB 632 (1977). The Board noted that allowing an employer to simply make a claim without any foundation makes no sense in light of the fact that it was the employer’s obligation to begin with to verify the employability of the employee when hiring.

Flaum gives just a little love to undocumented employees, as well as to documented employees subject to stereotypes that they are not authorized to work because of their national origin.

Jody LeWitter April 26, 2012

Jody LeWitterMay 1, 2011

In good news for employees, the U.S. Supreme Court has now adopted its own version of cat’s paw liability in Staub v. Proctor Hospital (March 1, 2011) 131 S.Ct. 1186, making employer liability where discriminatory animus taints the ultimate decision to fire the law of the land.

The Supreme Court adopted this standard while interpreting USERRA (the Uniformed Services Employment & Reemployment Rights Act), which prohibits discrimination against an employee due to his or her military status or obligations. 38 U.S.C. § 4311. Like many statutes prohibiting employment discrimination, if the protected status (here military service) is a “motivating factor” in the decision to fire, the decision to fire is illegal.

Staub v. Proctor applied the cat’s paw theory of discrimination to a reservist fired because his immediate supervisors resented his military service, even though the final decision maker didn’t herself harbour a discriminatory motive. The US Supreme Court held that, if the lower level supervisor’s “acts are motivated by discrimination, and this is a proximate cause of the termination, the employer is liable.” This was true because the human resources manager who made the decision relied upon the factual assertions presented by the discriminating supervisors.

Since the standard for discrimination claims is the same as above for Title VII and the California Fair Employment & Housing Act, there is every reason to assume that all courts will adopt this standard for claims brought under these acts. This obviates an unnecessary and unfair hurdle of proving that the ultimate decision maker is a bad actor and makes it more difficult for employers to hide behind a multilayered decision making process.

The Court did leave the door open for employers to insulate themselves from the discriminatory motive of non-decision makers by conducting a truly independent investigation which does not rely upon the discriminating supervisor’s taint or fact finding. Thus, the glass here is half full and half empty. It helps employees by clarifying the standard, but provides employers with a way out, if they are scrupulous about their decision making and investigative processes.

Jody LeWitter March 12, 2011