Articles Discussing The California Fair Employment And Housing Act (FEHA).

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.

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.

The California Legislature is nearing its summer recess, which starts Thursday, July 3. June 27 was the deadline for policy committees to meet and decide whether to advance bills under consideration. The following is a snapshot of the major private sector employment law legislative activity before the recess:

An employee’s e-mail threatening to report his employer to the U.S. Attorney and file an action under the federal False Claims Act unless the employer agreed to settle his defamation claim constituted extortion, as a matter of law, the California Court of Appeal has ruled. Stenehjem v. Sareen, No. H038342 (Cal. Ct. App. Jun. 13, 2014). Thus, the e-mail was not protected speech under California’s anti-SLAPP statute, Cal. Code Civ. Proc. § 425.16. The Court reversed the dismissal of the employer’s complaint for extortion. While the unusual allegations in this case do not arise often, the decision is a positive development for California employers.

Evidence of a prior narcotics conviction could be used to show that the employee was not qualified for a union organizer position, even though the employer did not learn of the conviction until after it made the decision not to hire the plaintiff, the California Court of Appeal has ruled. Horne v. Int’l Union of Painters and Allied Trades, Dist. Council 16, No. A135470 (Cal. Ct. App. Dec. 3, 2013). Although the after-acquired evidence doctrine would bar the use of the conviction to prove the employer’s motive for refusing to hire the employee, the Court stated the conviction could be used to show the employee failed to satisfy a prima facie racial discrimination case under the California Fair Employment and Housing Act. Accordingly, the Court affirmed summary judgment in favor of the employer.

California Governor Jerry Brown recently signed into law Senate Bill No. 400 (SB 400), which expands the state’s current employment discrimination protections to victims of stalking. Effective January 1, 2014, SB 400 amends California Labor Code sections 230 and 230.1 to extend the prohibitions against discharging, discriminating against, or retaliating against employees who are known or suspected victims of domestic violence or sexual assault, to employees who are victims of stalking. SB 400 also adds a provision to Labor Code section 230 that requires employers to provide reasonable accommodations to victims of domestic violence, sexual assault, and stalking.

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.

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.

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.

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.

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.

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.

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.

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.

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.