Tag Archives: discrimination

California Employers: Some Important New Laws Effective Jan. 1, 2014

27304u_0California employers should be aware of significant new state laws which take effect on January 1, 2014. These include:

Protected Categories Expanded to Include Military and Veteran Status. – Assembly Bill 556 adds “military and veteran status” to the list of categories protected from employment discrimination.

Prohibition of “Unfair Immigration-Related Practices” – Assembly Bill 263 prohibits employers from engaging in “unfair immigration-related practices,” which could include contacting or threatening to contact immigration authorities, because an employee asserts protected rights under the California Labor Code. Other immigrant protection legislation effective Jan. 1, 2014 includes SB 666 (business license revocation for threatening to report immigration status), and AB 524 (authorizes criminal extortion for threatening to report immigration status).

Domestic Worker Bill of Rights – Assembly Bill 241 creates a Domestic Worker Bill of Rights. This provides specific overtime pay for a “domestic work employee who is a personal attendant.” The bill has many specific definitions and exclusions.

Heat Illness Recovery Periods – Senate Bill 435 expands meal and rest break prohibitions to include “recovery” periods necessary to prevent heat illness. Penalty mirrors premium for failing to provide meal or rest breaks (i.e., one additional hour of pay for each workday that meal, rest, heat illness recovery period not provided). Unlike the meal and rest period rules which provide a clear guidance on timing, however, the need for a heat illness recovery period is subjective and determined by the employee. Employers with outdoor workers need to ensure their Heat Illness Prevention programs comply with Cal-OSHA regulations.

Leaves Required for Victims of Certain Crimes – Two important new laws. Senate Bill 288 provides protections for victims of certain crimes (including solicitation for murder and vehicular manslaughter while intoxicated) who take time off from work to appear in court proceedings. SB 400 extends protections for victims of domestic violence or sexual assault or victims of stalking, including time off to appear at legal proceedings and to seek medical/psychological treatment. This law adds a reasonable accommodation requirement—which can include implementation of safety measures—for victims of domestic violence, sexual assault or stalking.

Expanded Scope of Whistleblower Protections – California Labor Code Section 1102.5 already provides protections for employees who report violations of federal or state statutes. Senate Bill 496 expands this protection to include suspected violations of a local rule or regulation, and will include reporting violations to “a person with authority over the employee or another employee who has authority to investigate, discover or correct the violation.”


Recent Mixed-Motive Case Is A Mixed Bag For California Employers

1184335059_0505In February, the California Supreme Court issued an important decision applying the mixed-motive defense to employment discrimination cases brought under California’s Fair Employment and Housing Act (FEHA). First, a brief bit of background: according to the mixed-motive defense, available in federal employment discrimination claims brought under Title VII, if an employer had both discriminatory and nondiscriminatory reasons for firing an employee, the employer should not be liable if the nondiscriminatory reason alone was sufficient to warrant termination of the employee.

In Harris v. City of Santa Monica, a bus driver was terminated for performance-related reasons shortly after she notified her supervisor that she was pregnant. She sued the City alleging the termination was an instance of pregnancy discrimination. At trial, the City asked the court to instruct the jury that, if the City proves it would have reached the same decision to terminate the driver even without a discriminatory motive, then it could not be held liable. The court refused this instruction and instead instructed the jury that if the bus driver proved her pregnancy was “a motivating factor/reason for the discharge” then the City was liable. The jury found the plaintiff’s pregnancy was a motivating factor and awarded her $177,905 in damages and $401,187 in attorney’s fees.

The City appealed and the Court of Appeal determined that the proposed mixed-motive instruction should have been given. It reversed and remanded. Harris sought, and the California Supreme Court granted, review of the Court of Appeal decision.

The Supreme Court held that the instruction should have required the plaintiff to establish, not just that discrimination was a motivating factor or reason, but that it was “a substantial motivating factor/reason” for the termination.* If the plaintiff makes this showing, the employer then has the opportunity to limit its exposure by proving by a preponderance of the evidence that it would have made the same decision for nondiscriminatory reasons, such as job performance. If the jury finds in favor of the employer on this issue, the plaintiff may not recover compensatory damages, back pay or reinstatement, though she may still seek and recover injunctive and declaratory relief. Additionally, she may stll be entitled to recover her attorney’s fees in prosecuting the lawsuit under FEHA.

At first blush, Harris would seem to be a positive development for California employers–and it is. The problem is that employment discrimination suits tend to be attorney-fee driven, with the result that lawyers will file and aggressively pursue marginal liability cases with the hope of striking it big with an attorney fee award. Consider the trial result in Harris, in which the attorney fees sought were over twice the damages award. The practical impact is that the employer is punished (though an attorney fee award) even when it otherwise succeeds in its mixed-motive defense.

*Emphasis added.


California’s FEHA Will Explicitly Cover Religious Dress And Grooming Practices

trfredSome employers struggle with reasonable accommodation of an employee’s religious preferences. Effective January 1, 2013, the California Fair Employment and Housing Act (FEHA) definition of “religious creed” will be amended to explicitly include “religious dress practice” and “religious grooming practice.” “Religious dress practice” includes the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed, while “religious grooming practice” includes all forms of head, facial and body hair that are part of the observance by an individual of his or her religious creed. The terms “religious dress” and “grooming practices” are to be broadly construed.

I hold the (perhaps naive) belief that, when most employers violate prohibitions against religious discrimination, it’s often by accident. So I try to provide examples.  The HR Gazette provides these:

“‘[R]eligious dress’ means virtually any piece of clothing or accessory that signifies or expresses a religious creed or belief.  The most common examples are a hijab (the headscarf worn by Muslim women), the dastar (the turban worn by Sikh males) or a yarmulke (the skullcap worn by Jewish males).  Religious dress could also include jewelry such as a Christian cross, Star of David, or an Ankh.”

“[A]n employer would be required to accommodate an employee’s religious belief by allowing him to wear a beard or long hair in the workplace.  Some religions require men and women to shave their head.”

Here are a couple of ripped-from-the-headlines cases to further illustrate:

1. A certain “preppy” store refused to hire a woman when she appeared for an interview wearing a headscarf, which she wore for religious reasons as a devout Muslim. The employer argued that it had a strict “Look” policy in order to insure a unified “preppy” brand image. The jury awarded the woman $20,000.

2. A fast food chain was sued after terminated a devout Nazirite due to his failure to cut his hair. Nazirites do not cut their hair as a sign of devotion to God. The employee had worked for six years without cutting his hair (in fact, he had not cut his hair since he was 15 years old) before the company tried to enforce its grooming policy that required him to cut his hair. The chain entered into a consent decree whereby it settled the case and agreed to pay the employee $27,000, and also to adopt a formal religious accommodation policy.

Employers subject to FEHA must reasonably accommodate an individual’s religious creed. The amendments provide that an action that segregates or hides an individual, either from other employees or the public, because of that individual’s religious dress or grooming practices is not a reasonable accommodation of an employee’s religious dress or grooming practices.


The Importance of Being Earnest (When Firing)

Not everyone is cut out to play the boss.  While I suspect there are a few sadists who actually enjoy the act of firing an employee, most people hate delivering bad news and learning you’re now jobless usually ranks near the top of the bad news heap. 

From the point of view of a lawyer who represents employers in lawsuits, however, I view the process of termination to be extremely important.  It can be tempting, when one is forced to deliver the news, to sugarcoat.  Most sugar-coating doesn’t really make anyone feel better.  For example, “you’ll always be part of the family,” or “you’ll thank me someday for this chance at a fresh start,” might have worked for George Clooney in “Up In The Air,” but it’s a pretty stupid thing to say in the real world.

One brand of sugar-coating that can be really dangerous concerns mischaracterizing a termination for poor work performance as something other than what it is.  In particular, suggesting a sub-par employee is being “laid off” creates substantial risk.  If the “redundant” employee is replaced anytime in the near future, it sets the stage for him or her to argue, in a subsequent discrimination lawsuit, that the lack of work was merely a pretext.  That the actual goal was to eliminate the employee on the basis of some protected characteristic (i.e., race, gender, disability, religion).  This kind of evidence plays well at trial: like all of us, jurors love to hear about conspiracies and cover-ups. 

One way for employers to make the act of termination less of a surprise–and therefore less painful for everyone involved–is to make termination the final step in a progressive discipline policy.  Implementing such a policy starts with  a frank discussion with the underperforming employee that is documented by a dated, written record of the discussion.  This type of discussion does not even need to be characterized as discipline, but rather a coaching tool. 

If verbal discussions (documented) do not improve performance, the next step should be a written notice that describes the problem, proposes a solution and is provided to the employee concurrently with the verbal discussion.  The employee should be asked to sign this document, and perhaps there will be a space dedicated for any response the employee might have.  lf the problem persists, the possibility of one or more additional written notices/warnings can be provided, but the message communicated should be that, after a defined number of written notices/warnings, termination will result. 

A progressive, documented discipline policy serves two really important purposes.  For me–your lawyer–it is important evidence if a wrongful termination or other lawsuit results from the employment relationship or termination.  Perhaps more importantly, though, it gives the employee every chance to succeed.


On Getting Through The Drama of A Lawsuit

You are a CEO reporting to an angry board.  You are a sole proprietor with the future of your business at stake.  Or you are an employee accused of discrimination or harassment, with your job and relationship at home on the line.  Lawsuits are long, drawn out, often dramatic ordeals; they exact a toll on the participants.  What follows are some ideas about how to cope with this drama and stress:

1.  Find a lawyer you trust.  This sounds obvious, but it can take some searching to find the right attorney.  He or she must be competent in your eyes, or your stress level will increase.  Equally important, your lawyer must be able to manage the stress of the suit or, again, your stress level will be worsened.

2.  Trust the lawyer you find.  Once you find the right lawyer, trust him or her.  It is rare that your lawyer will not want and expect you to be truthful with him or her, even if the facts are bad or embarrassing.  Your lawyer is in the best position to help you or your company; arm him or her with the true facts.

3.  Participate in your case.  I have found that individual clients who take an active role in their case experience a feeling of control.  It’s not illusory.  Your lawyer can only work with the tools and materials made available to him or her.  You can do quite a lot, by locating and organizing documents, educating your lawyer about the nuances of your business or the circumstances of the case.

4.  Manage your anger, fear or frustration.  The stress of being the target of a lawsuit is not dissimilar from other traumatic or stressful events.  Experts coach those going through a divorce or enduring a tragedy to use exercise or relaxation techniques, like meditation, to manage the stress.  Think of a lawsuit in the same way.  One caveat:  bear in mind that communications with someone other than a spouse or lawyer about the details of the case can be “discovered” and potentially used against you if you say something damaging.  Consult with your lawyer before speaking in any detail about your case with someone who is not your spouse.

5.  Try not to direct your anger or frustration at your loved ones.  This will only make it worse and potentially cause damage that can be permanent.

6.  Try not to direct your anger at your lawyer.  Don’t kill the messenger.  In most instances, your lawyer is doing the best he or she can to protect your interests.

7.  Brace for the long haul, but know it will come to an end.  The cliché, “this, too, shall pass,” is true.  Every lawsuit will come to an end, and there will be an opportunity for closure and new beginnings.


Tarle v. Kaiser: You Must Oppose Objections to Argue Them On Appeal of Summary Judgment

Anyone who has argued a complicated summary judgment motion knows the challenges of making sure the record is robust to provide for appellate review, if necessary.  This is particularly true given increasingly “jammed” law and motion calendars, which sometimes cause judges to encourage counsel to make oral argument brief.

Against this background, the Second District California Court of Appeal issued an opinion last week which highlights an important rule when briefing or arguing summary judgment motions.  In Tarle v. Kaiser Found. Health Plan, Inc. (2012 WL1850926), an employment discrimination case, the employer moved for summary judgment.  The employee opposed the motion, including submissions of 750 pages of evidence.  In reply, the employer submitted 335 separate objections to the plaintiff’s evidence.  Despite a second hearing and briefing opportunity, the plaintiff did not specifically oppose, in writing or during oral argument, the objections to the plaintiff’s evidence.

The trial court sustained nearly all of the objections to plaintiff’s evidence and granted summary judgment.  The plaintiff appealed and tried to raise the issue of the court’s sustaining of defendant’s numerous evidentiary objections.  Although the Second District Court of Appeal reversed the summary judgment (on separate grounds), the appellate court barred the plaintiff from arguing the objections, based on her failure to argue orally or in writing against the objections at the trial court.  It said.  “We conclude that a party who fails to provide some oral or written opposition to objections, in the context of a summary judgment motion, is barred from challenging the adverse rulings on those objections on appeal.”

This opinion reinforces the importance of presenting an organized oral argument on summary judgment motions.  Where a judge is “rushing” counsel to make their argument unduly brief, it may even become necessary to take steps to assure that the record reflects this fact (which, itself, could raise an impatient judge’s ire).  Tread carefully!


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