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Total Articles: 46

California Division of Industrial Relations Overview of New California Laws Available

Jackson Lewis recently completed a series of seminars throughout California on many of the key California workplace law updates. On December 28, 2016, the California Department of Industrial Relations (DIR) released its own 2016 Legislative Digest summarizing new laws that impact employees. The DIR Legislative Digest is the DIR’s summary of key laws and is helpful for employers to see their focus.

Finally! Something That's Not "Protected Activity" in California

Executive Summary: It turns out that “protected activity” sufficient to make out a retaliation claim in California is not as broad as it may sometimes seem. On November 9, 2016, the Court of Appeal affirmed summary judgment for the employer in Dinslage v. City and County of San Francisco (A142365). The Court held that an employee can only state a prima facie case for retaliation under California’s Fair Employment and Housing Act when the protected activity is directed at an unlawful employment practice.

Governor Signs Law Giving California Labor Department Greater Role in PAGA Suits

On June 27, 2016, California Governor Jerry Brown signed into law a set of amendments to California’s Labor Code Private Attorneys General Act (PAGA) that will expand labor officials’ involvement in PAGA claims. PAGA gives employees the right to sue their employers for Labor Code violations on behalf of the California Labor and Workforce Development Agency (LWDA) after first giving the LWDA an opportunity to investigate.

As promised, a longer article on California's New EEO Policy Requirement

I posted a couple of weeks ago (here) about the California Fair Employment and Housing Commissions new EEO regulations (here), which include specific requirements for anti-discrimination and harassment policies. I promised to post our longer article for you. Here it is.

The New California Regulations, Part I: Preventing and Correcting Wrongful Behavior

California’s Office of Administrative Law approved regulations drafted by the California Fair Employment and Housing Council. These new regulations, covering the entire gamut of employment law topics within the Fair Employment and Housing Act (FEHA), touch on almost every aspect of employment law and will go into effect on April 1, 2016.

California Fair Employment and Housing Council Regulations Effective April 1, 2016 Require Employers to Change EEO Policies Now

The California Fair Employment and Housing Council is issuing revised regulations regarding discrimination, harassment and the like under the Fair Employment and Housing Act. Shaw Valenza will be publishing a more detailed article in the next couple of weeks, which I'll post here.

Don't be Fooled: Significant New Anti-Discrimination and Harassment Policy Requirements Start April 1 for California Employers

On April 1, 2016, new California regulations take effect requiring employers to develop written anti-discrimination and harassment policies that meet numerous new and detailed requirements.1 These regulations require employers to develop and distribute anti-discrimination and harassment policies to employees in English as well as in any additional languages that are spoken by at least 10% of the workforce. The regulations also impose requirements for conducting discrimination and harassment investigations.

Timing is Everything: Pair of California Retaliation Cases Lead to Opposite Results for Employers

Two cases involving employees who were terminated shortly following protected leaves of absence lead to opposite results for the employers, with one case being dismissed and the other proceeding to trial. In one case, the California Court of Appeal rejected a bank employee’s claim that she was wrongfully terminated in retaliation for taking a domestic violence leave of absence. Rosales v. Moneytree, Inc. In the other, the United States District Court for the Northern District of California ruled that triable issues of fact existed regarding an outside sales representative’s claim that her employer terminated her in retaliation for her complaining about the amount of documentation requested to support her medical leave of absence. Furtado v. United Rentals Inc.

Wisteria Lane Retaliation Claim Revived on Appeal: Desperate Housewife Not Required to Exhaust Administrative Remedies

In Sheridan v. Touchstone Television Productions, LLC, a California appellate court held that a plaintiff is not required to exhaust administrative remedies for alleged violations of section 6310 et seq. of the California Labor Code (“section 6310”), which prohibits retaliation against employees for complaining about unsafe working conditions. Defendant Touchstone Television Productions, LLC (“Touchstone”) hired actress Nicollette Sheridan (“Sheridan”) for the hit television series, Desperate Housewives, and had the option to renew her contract on an annual basis. During a rehearsal in September 2008, Sheridan attempted to question the show’s creator, and he allegedly struck her in response. Sheridan complained to Touchstone about the alleged battery.

The California Court of Appeal Broadens Anti-Retaliation Rules for Employers

In Cardenas v. M. Fanaian, D.D.S., Inc., the 5th District of the California Court of Appeal held that Labor Code § 1102.5 prohibits an employer from retaliating against an employee who discloses information to a law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of state or federal law. The Court clarified that section 1102.5 protects employees even where the report to law enforcement concerns a violation of law committed by a fellow employee or contractor, and not by the employer.

California Governor Signs Bill Making Request for Reasonable Accommodation Grounds for Retaliation Claim Under FEHA

The Courts of Appeal have held that an employee's requesting reasonable accommodation is not a "protected activity" for which a retaliation claim will lie under the Fair Employment and Housing Act. (See, for example, Rope v. Auto-Chlor, discussed here). That is because protected activity was (previously) defined as "opposing" some unlawful practice, or participation in an investigation or proceeding involving FEHA-based claims. A request for accommodation is not "opposing" an unlawful practice, so it did not fall within the previous definition.

New California Law Expands Retaliation Coverage

On July 16, 2015, Governor Brown signed into law AB 987, amending the California Fair Employment and Housing Act (FEHA) to reflect what many already believed to be the law: employers and other covered entities cannot retaliate against employees or other persons who request a religious accommodation or an accommodation for a disability. Effective on January 1, 2016, AB 987 establishes that requesting such an accommodation is a protected activity under the FEHA, regardless of whether the accommodation is granted.

California Legislature Overturns Retaliation Holding in Rope v. Auto-Chlor and Classifies a Mere Request for Accommodation as a “Protected Activity”

On July 16, 2015, AB 987 was signed into law by the Governor Jerry Brown which provides a paradigm shift in favor of employees with respect to their retaliation claims. The new law overturns the retaliation holding in Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, and makes it unlawful for an employer to retaliate or otherwise discriminate against a person for “requesting” an accommodation based on religion or disability.

Ninth Circuit: Summary Judgment in Employment Discrimination Cases Should Not Happen Much

The Ninth Circuit reversed summary judgment in a disability discrimination case alleged under the California Fair Employment and Housing Act. We can't even say what the facts are, because the court does not recite them.

California eAuthority (February 2, 2015)

California Supreme Court Lets Arbitration Award Stand, Dodges “Honest Belief” Defense; The Price is Wrong: California Court OKs a New Trial in Game Show Model’s Pregnancy Bias Case; Employer May Obtain Judicial Review of California Unemployment Insurance Appeals Board Decision; Exotic Dancers’ Class Action Employment Suit Stays Alive in California; California School Teacher’s Claim That She Was Fired Due to a Computer Error Proceeds.


The California Fair Employment and Housing Council is considering proposed amendments to the regulations interpreting the Fair Employment and Housing Act (FEHA). The draft regulations are posted at They reflect recent amendments to the FEHA itself and changes based on case law developments and accepted “best practices.” The following summarizes the most significant proposals.

New California Paid Sick Leave Law May Cause Headaches for Employers

Executive Summary: On September 10, 2014, California Governor Jerry Brown signed into law the Healthy Workplaces, Healthy Families Act of 2014 (HWHFA), which provides nearly all employees working in California with paid sick leave. The new law goes into effect on July 1, 2015.

California Supreme Court: "Illegal Immigrant Shouldn't Have Been Hired – But Can't Be Fired Illegally"

On June 26, 2014, the California Supreme Court decided that an employee may proceed with a discrimination lawsuit even though he presented false work authorization documents to obtain employment in the first place.


The U.S. Equal Employment Opportunity Commission (“EEO”) reports that the number of claims alleging unlawful retaliation has skyrocketed since 1997, from 22.7% to 41.1% of all claims filed. Retaliation is currently the most common basis for complaints filed with the agency, outdistancing both race (35.3%) and sex (29.5%) discrimination.

Cal. Court of Appeal Applies Avoidable Consequences Defense to Discrimination Claim

This case illustrates the benefit of a good internal complaint procedure. Employers may rely on effective "grievance" or "open door" policies to reduce potential liability, particularly when employees rush to court without first relying on them.

Court of Appeal: Employers Cannot Shorten Statutes of Limitations in FEHA Discrimination Cases

The employment relationship is contractual (e.g., I'll work for you and you will pay me). Statutes of limitations generally can be shortened by contract, even in California. Now forget all of these general rules. An agreement shortening the California Fair Employment and Housing Act's statute of limitations is void, said the Court of Appeal in Ellis v. U.S. Security Associates.

California’s New Anti-Retaliation Protections for Foreign Workers Effective January 2014

In October 2013, California enacted several new laws that provide California workers, who are seeking to change their personal information, engage in whistleblower activity, or exercise their workplace rights, with expanded protections against adverse employment actions, including specific protections for foreign national employees. The new legislation became effective on January 1, 2014. Some of the relevant provisions are summarized below.

Court of Appeal Addresses Motivation in Retaliation Cases and the Role of Investigations

Mendoza was a long-term nurse for Western Medical Center - Santa Ana. His performance had been excellent. Mendoza claimed his new boss was harassing him. Erdmann, the boss, claimed that Mendoza was sexually inappropriate to him. The employer investigated and determined that both employees engaged in misconduct. The employer fired both of them.

California Court Further Expands FEHA Protections to Employees Based on Association with Disabled Person

Rope v. Auto-Chlor System of Washington, Inc., No. B242003 (October 16, 2013): Recently, a California Court of Appeal held that a fired employee could proceed with a lawsuit in which he claimed that his employer discriminated against him based on his association with his disabled sister to whom he planned to donate a kidney.

California Appellate Court Finds Employees Must Show Discrimination Was a “Substantial Motivating Factor”

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.

California Court of Appeal: Applying New Post-Harris v. L.A. Standard in FEHA Discrimination Cases

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.

California Legislature Deliberating Changes to Remedies in Mixed Motive Cases

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.”

Who Needs the Aggregation? Ninth Circuit Rejects Combining of PAGA Penalties to Establish Minimum Amount in Controversy

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.

Court of Appeal: Statute of Limitations Bars Claims Based on Stale Administrative Charges

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.


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.


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.

Legal Alert: California Supreme Court Issues "Mixed Motive" Decision Favorable to Employers

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.

California Supreme Court's "Mixed Motive" Ruling May Have Major Impact on Fair Employment and Housing Claims

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.

California Supremes Rule on "Mixed Motive"

Here is a long awaited and unanimous (6-0 with Baxter recused) ruling from the California Supreme Court:

California Supreme Court Rejects Damages, Back Pay, and Reinstatement Where Employer Proves Legitimate Mixed-Motive

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).

California Pregnancy and Disability Regulations - Final Comments?

The Fair Employment and Housing Commission has issued nearly almost final regulations regarding disability discrimination and regarding pregnancy disability leave.

No More Fair Employment and Housing Commission?

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.

Court Rejects FEHA Claim Brought by Employee Fired for Allegedly Filing False Harassment Complaint

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 employer’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 employer’s stated reason for firing him was pretextual. Joaquin v. City of Los Angeles, No. B226685, California Court of Appeal (January 23, 2012).


The Department of Fair Employment and Housing has just issued its first set of procedural regulations, available at, and codified at 2 Cal. Code Regs. § 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.

California Supreme Court Holds That Stray Remarks Made by Non-Decision Makers Can Be Considered in Age Bias Case.

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.


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.


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.


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.


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.”

No Individual Liability for Retaliation under the FEHA.

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.

Individuals Cannot be Held Liable for Retaliation Claims.

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.