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Discrimination

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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

Older 9th Circuit decisions hold that while statutory employment discrimination claims under Title VII and similar laws are arbitrable, there must be a showing that the employee knowingly waived his right to a jury trial of such claims.  In this decision, the court holds that even if the "knowing waiver" standard is still good law, it was satisfied in this… Read More

Section 105(c) of the federal Mine Safety and Health Act (30 U.S.C. § 815(c)) prohibits an employer from taking adverse action against an employee "because of" the employee's reporting a violation of the Act or seeking benefits under it.  Following the Supreme Court's decisions in Bostock v. Clayton Cnty., 140 S.Ct. 1731, 1739 (2020) and other recent cases, this decision… Read More

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