Contrary to prior Second Circuit rulings, this decision holds that a plaintiff alleging retaliation in violation of the Sarbanes-Oxley Act's provision (18 U. S. C. §1514A(a)) prohibiting retaliation against employees for engaging in protected whistleblowing activity need not plead or prove that the retaliating employer acted with retaliatory intent. The employee's prima facie case need merely show that his protected… Read More
Seyfarth was hired to investigate a professor's claim that she was discriminated against by Cal. State University Fullerton. It performed the investigation and submitted a report to the university administration concluding there was no merit to the professor's claims. After unsuccessfully suing a host of other defendants, the professor sued Seyfarth, claiming the report and investigation were biased, etc. Seyfarth… Read More
Seyfarth was hired to investigate a professor's claim that she was discriminated against by Cal. State University Fullerton. It performed the investigation and submitted a report to the university administration concluding there was no merit to the professor's claims. After unsuccessfully suing a host of other defendants, the professor sued Seyfarth, claiming the report and investigation were biased, etc. Seyfarth… Read More
Gov. Code 12926(d) states that, for purposes of the FEHA, the term “ ‘[e]mployer’ includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly . . . .” This decision holds that the quoted language allows the employer's agent to be held primarily liable for its own violation… Read More
Under Title VII (42 USC 2000e(j)), an employer must accommodate an employee's religious observance practice unless it is unable to do so without undue hardship in the conduct of the employer's business. Undue hardship requires substantially more than "more than de minimus cost." Instead, to establish "undue hardship," an employer must show is that the burden of granting an accommodation… Read More
Calling contrary language in SI 59 LLC v. Variel Warner Ventures LLC (2018) 29 Cal.App.5th 146 dicta, this decision holds that despite Civ. Code 1668, a release may be enforceable while the claim still has not accrued for statute of limitations purposes, at least so long as the plaintiff is aware of the claim she releases and the wrongful acts… Read More
Though the ministerial exception to employment discrimination laws is in the nature of an affirmative defense that the defendant must allege and prove, the trial court did not err in allowing the defendant in this case to raise the exception for the first time by a summary judgment motion after the close of discovery. Plaintiff couldn't show any prejudice because… Read More
A plaintiff bringing a pregnancy discrimination claim under Gov. Code section 12945(a)(3)(A) must prove that (1) the plaintiff had a condition related to pregnancy, childbirth, or a related medical condition; (2) the plaintiff requested accommodation of this condition, with the advice of her health care provider; (3) the plaintiff’s employer refused to provide a reasonable accommodation; and (4) with the… Read More
Summary judgment for defendant employer was reversed in this disability discrimination in employment case. Defendant tentatively decided to lay plaintiff off before she became disabled, but didn't follow through with that decision until after plaintiff suffered a disabling injury. Plaintiff produced sufficient evidence to raise a triable issue of fact as to whether defendant's concern with plaintiff's disability led to… Read More
Plaintiff raised a triable issue of fact precluding summary judgment on her disability discrimination claim. Defendant fired her because she failed a physical exam which allowed an inference that defendant regarded plaintiff as disabled due to balance and strength deficits in her right leg as shown on the physical exam. Plaintiff also raised a triable issue as to whether she… Read More
Following Light v. California Department of Parks & Recreation (2017) 14 Cal.App.5th 75 and looking holistically at the evidence, plaintiff raised a triable issue of fact precluding summary judgment on her sex discrimination and retaliation claims. The defendant was not entitled to a presumption of nondiscrimination based on the same actor (hiring and firing) her since the hiring was tied… Read More
Under Gov. Code 12965(c)(3), an action in which one cause of action is for violation of FEHA (even if joined with other claims) may be brought, among other venues, where the violation occurred or where the plaintiff would have worked but for the alleged violation. This decision holds that venue in this pregnancy discrimination case was proper in Los Angeles… Read More
The relationship between a medical resident and a hospital residency program is primarily an employment relationship, not a teaching relationship. Accordingly, in judging a resident's claim that she was dismissed from the residency program due to gender discrimination and retaliation for her complaints about gender discrimination, the jury should not be instructed to give academic deference to the residency program's… Read More
Affirming an order denying an employer's motion to compel arbitration of the worker's wage and hour, retaliation and discrimination in employment claims, this decision holds the agreement was at least minimally procedurally unconscionable as it was an adhesion contract. It also holds two provisions substantively unconscionable, one requiring any claims to be brought within a year of discovery (despite statutes… Read More
The district court erred in dismissing plaintiff's sex discrimination/hostile working environment claim. The employer failed to take immediate corrective action when a customer at the nail salon sexually propositioned plaintiff, a male pedicurist. Instead of doing so, the employer sent plaintiff back to complete the pedicure of the offending customer. Also, the later remarks by fellow workers about the incident… Read More
Following Reid v. Google, Inc. (2010) 50 Cal.4th 512, this decision holds that the trial court erred in excluding "stray remarks" evidence in this employment discrimination case on the basis of age. The stray remark, by an assistant dean, was that she wanted someone younger (than the applicant, not plaintiff) for a position different than any plaintiff held or applied… Read More
Employment, Race/Ethnicity Discrimination, Unconscious Discrimination, Aversive Racism, 2, 8 This decision holds that race discrimination need not be consciously motivated by race in order to violate Title VII. Unconscious application of racial stereotypes is enough to violate the statute. However, expert testimony regarding such unconscious application of racial stereotypes does not prove race discrimination as a matter of law. The… Read More
An employer that gives preferential treatment toward a supervisor’s sexual or romantic partner does not thereby discriminate on the basis of sex against other employees of the same sex as the paramour because it doesn't satisfy Bostock v. Clayton County (2020) 140 S. Ct. 1731's test--would employer have acted differently if employee was of the opposite sex. As used in… Read More
A shareholder in a California-based corporation has Article III standing to sue the California Secretary of State to seek to enjoin SB 826 (2018) which enacted Corp. Code 301.3, 2115.5, requiring covered corporations to have at least one female director by 2019 and up to three female directors by 2021. Even though the statute is directed against corporations, not their… Read More
Smith was employed by Jiffy Lube. Fifty Jiffy Lube employees including Smith and his supervisors attended a meeting at which Pumerol, a BP representative, provided information on the company's new product and how it should be used in Jiffy Lube's work. During the meeting Pumerol made three derogatory comments about Smith, an African-American, including a reference to his "Banana Hands/" … Read More
