Total Articles: 39
Ogletree Deakins • October 28, 2013
Alamo v. Practice Management Information Corp., No. B230909 (September 5, 2013): In Alamo, a former employee who was fired upon her return from maternity leave brought a lawsuit for pregnancy discrimination in violation of the California Fair Employment and Housing Act (FEHA) and wrongful termination in violation of public policy. After the trial judge partially granted and partially denied the employer’s motion for summary judgment, the case was heard by a jury. The jury returned a verdict in favor of the employee and awarded her damages in the amount of $10,000. The trial judge then awarded attorneys’ fees and costs to Alamo as the prevailing plaintiff under FEHA.
Jackson Lewis P.C. • October 21, 2013
California Governor Jerry Brown (D) has signed an amendment to the California Fair Employment and Housing Act (“FEHA”), Cal. Civ. Code § 12920 et seq., to include military or veteran status as a class protected from employment discrimination.
Jackson Lewis P.C. • October 21, 2013
Legislation to prohibit employers from discharging, discriminating or retaliating against employees who are victims of certain offenses for taking time off from work to appear in any court proceeding in which their rights are in issue has been signed by California Governor Jerry Brown (D). Under the new law, employees who are discharged or otherwise discriminated against because they have taken such time off may file a complaint with the state Division of Labor Standards Enforcement and are entitled to reinstatement and reimbursement for lost wages and benefits for violations. The law becomes effective on January 1, 2014.
Shaw Valenza LLP • September 09, 2013
Alamo worked for a small company called PMIC as a collections clerk. She took pregnancy leave. PMIC hired a pregnant temp to replace her during the leave. The temp, named Moran, intended to stop working once Alamo returned.
Ogletree Deakins • September 05, 2013
This past February, the California Supreme Court addressed the viability of a mixed-motive defense to employment discrimination claims brought under the Fair Employment and Housing Act (FEHA) in the Harris v. City of Santa Monica case. The court held that where an employee demonstrates the employer’s adverse action was substantially motivated by discrimination but the employer demonstrates the employee would have been discharged even in the absence of any discriminatory intent, then a court cannot award back pay, damages, or reinstatement. However, where the unlawful discrimination was a “substantial factor” in the employment decision, the court held that the employee may be entitled to other remedies in the form of declaratory relief, injunctive relief, and attorneys’ fees and costs. For a detailed analysis on the Harris case, see our article, “California Supreme Court Rejects Damages, Back Pay, and Reinstatement Where Employer Proves Legitimate Mixed-Motive.”
Ogletree Deakins • August 26, 2013
The Ninth Circuit Court of Appeals recently issued a decision in Urbino v. Orkin Services of California, Inc., No. 11-56944 (August 13, 2013) holding that civil penalties available under California’s Private Attorneys General Act of 2004 (PAGA) may not be aggregated to establish the minimum amount in controversy of $75,000, which is required for federal diversity jurisdiction.
Shaw Valenza LLP • July 22, 2013
When an employee files a series of discrimination charges with the Department of Fair Employment and Housing, may she wait to sue until years later, even if she received "right to sue" letters long before she filed her lawsuit? No.
Jackson Lewis P.C. • April 24, 2013
A trial court properly excluded an employee’s “me too” evidence of alleged discrimination against employees of races different than the plaintiff’s, the California Court of Appeal has ruled in a race and national origin discrimination case under the California Fair Employment and Housing Act. Hatai v. Department of Transp., No. B236757 (Cal. Ct App. Mar. 28, 2013). However, since plaintiffs in employment discrimination or harassment cases can bring “me too” evidence showing discrimination against other workers within their same protected class, the Court found the trial court properly permitted the employee to introduce evidence of discrimination against other persons of the same race as the employee. The jury nevertheless rendered a verdict in favor of the employer and the Court of Appeal affirmed.
Shaw Valenza LLP • March 08, 2013
The plaintiff in a civil lawsuit has to prove his or her case by a “preponderance” of the evidence. That standard means the fact finder (often a jury) believes it is more likely than not that the plaintiff was wronged. In discrimination cases under the Fair Employment and Housing Act, the plaintiff has to prove it is more likely than not that an illegal reason was the employer’s motivation for taking negative action (e.g., discharge). What if some evidence shows the employer acted for lawful reasons, but there is also evidence of an illegal motive? Can the employer be held liable if there is 50.1% likelihood that one illegal reason existed, even though there was evidence the employer would have taken action regardless? In Harris v. City of Santa Monica, the California Supreme Court decided these issues surrounding the plaintiff’s and defendant’s burdens of proof in so-called “mixed motive” cases.
Shaw Valenza LLP • March 05, 2013
An employer’s failure to take steps to prevent discrimination, harassment, or retaliation may lead to liability under the Title VII of the federal Civil Rights Act of 1964 or its California counterpart, the Fair Employment and Housing Act (“FEHA”). Every employer as part of an effective prevention program should implement a complaint procedure that allows employees to report perceived mistreatment to management. An employer should also promptly investigate any reported mistreatment.
Littler Mendelson, P.C. • March 01, 2013
The California Supreme Court recently clarified the defenses available to employers defending against claims of discrimination. In Harris v. City of Santa Monica, No. BC341469 (Cal. Feb. 7, 2013), the court ruled that, if a discriminatory motive was a substantial factor in the decision to terminate an employee, an employer can still cut off all damages by proving that, even in the absence of any discriminatory motive, it would have made the same decision to terminate the plaintiff. In theory, the Harris decision will provide employers with a tool to cut off damages in claims of discrimination where an employee was clearly headed for termination. The court also held, however, that when a jury finds that the termination was substantially motivated by discrimination, the employee may still seek and receive declaratory and injunctive relief, and an award of attorneys' fees. Because of the availability of attorneys' fees and declaratory and injunctive relief, the Harris decision may result in more cases going to trial.
FordHarrison LLP • February 14, 2013
Executive Summary: According to a new California Supreme Court opinion, once an employee claiming discrimination demonstrates that a discriminatory reason for his or her termination substantially motivated an adverse employment decision, the employer is entitled to show that a legitimate, non-discriminatory reason would have led it to make the same decision. If the employer is able to demonstrate that, notwithstanding any discriminatory reason for the decision, it was actually motivated by a non-discriminatory reason, the employee is not entitled to monetary damages, back pay or reinstatement, but may still be entitled to an injunction or an award of attorneys' fees and costs.
Jackson Lewis P.C. • February 12, 2013
To establish liability in “mixed motive” employment discrimination cases under the California Fair Employment and Housing Act (FEHA), the employee must show that unlawful discrimination was a substantial factor motivating the adverse employment decision, the California Supreme Court ruled. Harris v. City of Santa Monica, No. S181004 (Cal. Feb. 7, 2013). However, if the employer proves that it would have made the same decision absent such discrimination, a court may not award damages, back pay, or order reinstatement, but the employee may be entitled to declaratory and injunctive relief, as well as attorney’s fees and costs.
Fisher & Phillips, LLP • February 12, 2013
On February 7, 2013 the California Supreme Court, in a unanimous decision, affirmed that backpay and reinstatement are not available remedies for a plaintiff under the Fair Employment and Housing Act (“FEHA”) when an employer has proved by a preponderance of evidence that it would have made the same decision to terminate that individual for lawful reasons. The legal impact of the much-anticipated decision is far reaching. Wynona Harris v. City of Santa Monica.
Shaw Valenza LLP • February 08, 2013
Here is a long awaited and unanimous (6-0 with Baxter recused) ruling from the California Supreme Court:
Ogletree Deakins • February 08, 2013
On February 7, 2013, the California Supreme Court issued a long-awaited decision on whether the “mixed-motive” defense applies to employment discrimination claims under the California Fair Employment and Housing Act (FEHA). The court held that where an employee demonstrates that unlawful discrimination was a substantial motivating factor in a challenged adverse employment action, and the employer proves that it would have made the same decision absent such discrimination, a court may not award damages, back pay, or reinstatement. Harris v. City of Santa Monica, No. S181004, California Supreme Court (February 7, 2013).
Jackson Lewis P.C. • December 20, 2012
The California high court is deliberating the standard of proof required to prove employment discrimination in “mixed motive” cases under the California Fair Employment and Housing Act. Harris v. City of Santa Monica, No. S181004 (Cal. Dec. 4, 2012). In these cases, the employer asserts it would have terminated or taken other adverse action against an employee, regardless of any alleged discrimination. At the oral argument, the California Supreme Court justices appeared divided regarding the appropriate standard, questioning both the employer’s argument that “but-for” causation is required to impose liability and the employee’s argument that liability may be imposed if discrimination is “a motivating factor” in the employer’s decision. Some justices suggested that liability could be imposed if the discrimination was a “substantial factor” in the decision.
Cooley LLP. • October 09, 2012
On September 27, 2012, California Governor Jerry Brown signed into law a bill which prohibits employers from requiring that employees or job applicants disclose information related to their personal social media accounts, such as Facebook. The bill makes it unlawful for employers to request that employees or job applicants turn over their personal user names or passwords, or to request that an employee or job applicant access his or her personal social media account in the presence of the employer, or to require that an employee or job applicant divulge any personal social media, including videos, photographs, blogs, podcasts, instant or text messages, email, online accounts, or websites profiles. Employers may not discharge, discipline, or retaliate against employees who refuse to divulge personal social media information.
Littler Mendelson, P.C. • October 09, 2012
California Governor Jerry Brown recently signed into law AB 2492, amending California’s False Claims Act to better conform it to requirements of the federal False Claims Act.1 In addition to amending definitions of “conduct” that would fall under the provisions of the new law, civil penalties are also increased for each violation. The new changes also make it easier for employees who themselves violate the Act to file suit against an employer based on the employee's prohibited conduct and be awarded a share of the proceeds of the action. Courts can, however, reduce the award based on the employee's conduct.
Shaw Valenza LLP • August 20, 2012
The Fair Employment and Housing Commission has issued nearly almost final regulations regarding disability discrimination and regarding pregnancy disability leave.
Shaw Valenza LLP • July 02, 2012
The California Governor just signed SB 1038. This bill, among many other things, eliminates the California Fair Employment and Housing Commission, and transfers its duties to the California Department of Fair Employment and Housing. The Commission was the agency that developed regulations and acted as the judicial body that heard claims of discrimination brought before the agency instead of court. Those duties will be handled by the Department internally now. Claims for damages currently before the Commission involving emotional distress will be heard in court rather than before the Commission. Other claims may be heard before an administrative law judge rather than the Commission.
Jackson Lewis P.C. • June 14, 2012
The Federal Arbitration Act preempts California law disfavoring the enforcement of a class action waiver in employee arbitration agreements, the California Court of Appeal has ruled. Iskanian v. CLS Transp. Los Angeles, LLC, No. B235158 (Cal. Ct. App. June 4, 2012). The Court noted the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), overruled California law. (For more information, please see our article, Supreme Court Strikes Down California’s Prohibition of Class Action Waivers in Arbitration Agreements.) The Court also ruled the FAA preempted the plaintiff’s claims under the California Private Attorney General Act (“PAGA”). Accordingly, it affirmed an order compelling arbitration and dismissing the employee’s class claims for alleged Labor Code violations and upheld a class action waiver.
Barker Olmsted & Barnier • June 01, 2012
Federal anti-discrimination law, found in Title VII of the Civil Rights Act of 1964, prohibits employment discrimination. The California Fair Employment and Housing Act prohibits the same. But what about business partners? Technically they are not “employees”; does that mean that they are not protected under the law? Federal law would say “no,” but a recent California appellate court in a case titled Fitzsimons v. California Emergency Physicians Medical Group determined that California law does not track federal law in this regard.
Jackson Lewis P.C. • May 22, 2012
A physician-partner in a medical practice could assert a retaliation claim under the California Fair Employment and Housing Act, the California Court of Appeal has held, reversing a judgment in favor of a medical partnership. Fitzsimons v. California Emergency Physicians Med. Group, No. A131604 (Cal. App. Dist. 1 Div. 3 May 16, 2012). The physician-partner reported alleged harassment of female employees within the practice while she served as the practice’s medical director. The Court ruled that, because the FEHA protects “any person” from retaliation, the physician could assert a claim for retaliation, even though, as a partner, she could not sue the practice for employment discrimination.
Ogletree Deakins • January 26, 2012
Earlier this week, a state appellate court held that an employee failed to introduce substantial evidence under the Fair Employment and Housing Act (FEHA) that his employerâ€™s decision to terminate his employment was motivated by retaliatory animus. According to the California Court of Appeal, the employee, who was fired for allegedly making false statements related to his sexual harassment complaint against his supervisor, could not show that his employerâ€™s stated reason for firing him was pretextual. Joaquin v. City of Los Angeles, No. B226685, California Court of Appeal (January 23, 2012).
Shaw Valenza LLP • October 17, 2011
The Department of Fair Employment and Housing has just issued its first set of procedural regulations, available at http://tinyurl.com/DFEH-Regulations, and codified at 2 Cal. Code Regs. Â§ 10000 et seq. The new rules will govern how the agency accepts and processes complaints of unlawful discrimination, harassment and retaliation under the Fair Employment and Housing Act, Unruh Civil Rights Act, Ralph Act and the Disabled Persons Act.
Littler Mendelson, P.C. • September 21, 2011
In early 2010, California's Department of Fair Employment and Housing (DFEH) proposed a series of new procedural regulations to govern the receipt, investigation, and conciliation of administrative complaints received by the department. Following a series of public hearings and a public comment period, the final regulations now have been approved by the Office of Administrative Law and filed with the Secretary of State. They will go into effect on October 17, 2011, and are codified at Title 2, California Code of Regulations, sections 10000 through 10066.
Jackson Lewis P.C. • August 29, 2011
In a potentially dangerous precedent for employers, a California appeals court has ruled that an employee claiming employer sexual or racial harassment can prove the employer's discriminatory intent by showing the employer harassed other workers, even though such harassment occurred outside the complaining employee's presence. Pantoja v. Thomas J. Anton, et al., No. F058414 (Cal. Ct. App. Aug. 9, 2011). The Court found the lower court improperly excluded evidence of the employer's alleged gender bias in the form of harassing activity against women employees other than the plaintiff. Although the excluded â€œme tooâ€ evidence related to harassing activity that occurred outside the plaintiff's presence â€” and even at times when she was not an employee â€” it should have been admitted as evidence of a discriminatory or biased intent or motive under California Evidence Code Â§ 1101(b), the Court of Appeal concluded. The lower court's exclusion of the evidence on the grounds it was propensity or character evidence under Evidence Code Â§ 1101(a) therefore was prejudicial.
Ogletree Deakins • August 16, 2010
On August 5, the California Supreme Court handed down its decision in Reid v. Google, Inc., an age discrimination case that was dismissed at the trial court level on summary judgment. The trial judge dismissed the case after finding that “stray remarks” by individuals who had no involvement with the decision to terminate the plaintiff’s employment were insufficient evidence of discrimination to send the case to trial. The Court of Appeal reversed the trial judge’s order granting the employer summary judgment and held that the stray remarks by the non-decision makers was admissible to prove his claim of discrimination. The California Supreme Court agreed and rejected the strict application of the “stray remarks doctrine” in California discrimination cases.
Shaw Valenza LLP • February 12, 2010
The plaintiff in an employment discrimination case must establish a link between the plaintiff's protected classification (e.g., race, sex, etc.) and adverse action (e.g., discharge, demotion, etc.). The opinions construing the Fair Employment and Housing Act say the plaintiff merely must show that unlawful discrimination was "a motivating factor" behind the allegedly discriminatory decision. The burden is not onerous. "A motivating factor" means illegal discrimination was just one reason behind the decision, even if other motivating reasons were perfectly legal.
Shaw Valenza LLP • June 19, 2009
The California Court of Appeal’s recent decision in Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties may change the way courts rule on evidence in discrimination cases. The court found admissible as proof of discrimination other employees’ testimony about discrimination against them. Such “me too” evidence therefore may be admissible to bootstrap the plaintiff’s own claim.
Barker Olmsted & Barnier • February 04, 2009
During these tough economic times, as employees fall into debt, employers may see an increase in wage garnishments. Can an employer terminate an employee if the wage garnishments become a nuisance? The answer is: "It depends." Read this article for details.
Shaw Valenza LLP • January 02, 2009
The California Fair Employment and Housing Act (FEHA) requires an employee to file an administrative complaint of discrimination, harassment, or retaliation within one year of the alleged unlawful employment practice. This statute of limitations provides employees with time to assert their claims. It also protects employers from stale claims, faded memories, and unavailable witnesses, and makes it easier for the administrative agency involved (the Equal Employment Opportunity Commission (EEOC) or the state Department of Fair Employment and Housing (DFEH)) to investigate, obtain documents, find witnesses, etc.
Shaw Valenza LLP • July 07, 2008
The courts have issued a significant number of retaliation decisions in the past several weeks. The U.S. Supreme Court held in two cases that employees are protected from adverse employment actions for complaining about civil rights violations, even when the underlying statutes did not contain anti-retaliation provisions. Two panels of the California Court of Appeal went in different directions regarding what constitutes “retaliation.”
Barker Olmsted & Barnier • April 17, 2008
The California Supreme Court handed a major victory to employers on March 3rd in a case titled Jones v. The Lodge at Torrey Pines. The decision related to liability under California's Fair Employment and Housing Act ("FEHA"). The California law prohibits discrimination in the workplace, and also prohibits retaliation against an employee who protests illegal discrimination, files a complaint, or testifies in a legal proceeding.
Shaw Valenza LLP • March 12, 2008
The California Supreme Court continued a trend on Monday, March 3, 2008, when it held in Jones v. The Lodge at Torrey Pines that supervisors cannot be held individually liable for retaliation under California’s Fair Employment and Housing Act (FEHA). The Court has consistently shielded individual supervisors from various other forms of employment related claims. For example, the Supreme Court ruled in Reynolds v. Bement, a 2005 decision, that individual corporate agents, including officers, directors, and shareholders, could not be personally liable for an employer’s failure to pay wages to its employees. Similarly, in 2000, the Court held in Carrisales v. Department of Corrections that individual, non-supervisory employees could not be held liable for harassment.
Ogletree Deakins • March 04, 2008
In Reno v. Baird, the California Supreme Court held in 1998 that individuals are not personally liable for discrimination under the California Fair Employment and Housing Act (FEHA). Similarly, today the Court ruled in Jones v. The Lodge at Torrey Pines Partnership that while employers may be held liable, individuals may not be held financially responsible for retaliation claims in the discrimination context.
Ballard Rosenberg Golper & Savitt • June 01, 2007
In Malais v. Los Angeles City Fire Dep’t, the California Court of Appeal affirmed the grant of summary judgment in favor of the Los Angeles Fire Department on claims for disability discrimination under the Fair Employment and Housing Act (“FEHA”) and adverse employment action in violation of public policy. The court held that the Department did not subject plaintiff Gregory Malais to an adverse employment action as a matter of law.
Ballard Rosenberg Golper & Savitt • June 01, 2007
In Loggins v. Kaiser Permanente Int’l, the California Court of Appeal held that summary judgment was properly granted on the retaliation claim of plaintiff Diane Loggins because she failed to offer substantial evidence that her employer’s reason for terminating her was a pretext for retaliation.