California Labor & Employment Law Blog

By Alison L. Tsao

The Sixth Circuit of the U.S. Court of Appeals recently ruled that an employer who hired an employee through a staffing agency may be liable for violations of the federal Family Medical Leave Act (FMLA).  In Grace v. USCAR and Bartech Technical Services, LLC, --F.3d--, 2008 WL 782470 (6^th Cir. 2008), Plaintiff Rosalyn Grace was a long-term “contractor” who provided information technology (IT) services to Defendant USCAR through a couple of different placement agencies for a period of eight years.  In the fall of 2004, Grace developed a respiratory disability (asthma) that eventually resulted in her hospitalization, whereupon she took a leave of absence through her staffing agency, Bartech.  In late December 2004, just days before Grace’s original anticipated date of return to work, Bartech informed Grace that USCAR had decided to outsource its IT duties and that, as a result, her position was terminated.

USCAR contended that its management decided in the fall of 2004 to restructure its IT division to switch from using full-time contractors to contracting directly with individual providers on an as-needed basis.  Grace’s position was allegedly targeted for restructuring.  While Grace was on FMLA leave in December 2004, USCAR decided to use the services of another Bartech contractor, Spolarich, to handle regular IT maintenance issues due to Grace’s absence.  In May 2005, USCAR contracted directly with Spolarich for a 20-hour per week job to permanently fill the new IT position at USCAR.

Grace filed suit against Bartech and USCAR in federal district court, alleging among other things, violations of the FMLA for failing to return her to her pre-leave (or comparable) position and retaliation, and for gender discrimination under Title VII and Michigan’s civil rights law.  The district court granted both employers’ motions for summary judgment.  The Sixth Circuit Court of Appeals reversed the district court’s ruling with respect to the FMLA claims but affirmed the grant of summary judgment as to Grace’s Title VII claim.

The Court recognized that the FMLA is silent about the issue of joint employment.  However, the Department of Labor (DOL) has promulgated regulations such that liability could attach to Bartech and USCAR under either an “integrated employer test” or “joint employment” test under 29 C.F.R. § 825.104(c)(1).  The Court found that the integrated employer test did not apply because there was not sufficient interrelation between the operations of the staffing agency and client employer.  However, the Court found sufficient evidence under a joint employment test because each employer exercised a sufficient level of control over Grace’s work or working conditions.  Specifically, 29 C.F.R. § 825.106(a) describes three employment relationships where joint employment will “generally . . . be considered to exist:” (1) “where there is an arrangement between employers to share an employee’s services or to interchange employees;” (2) “where one employer acts directly or indirectly in the interest of the other employer in relation to the employee;” or, (3) “where the employers are not completely disassociated with respect to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under the common control with the other employer.”  Under specific regulations pertaining to cases involving staffing agencies and client employers, Bartech was determined to be Grace’s primary employer because it had the ultimate decision to hire and fire, the sole ability to assign Grace, and was the entity in charge of her payroll and benefits.  USCAR was determined to be a secondary employer because it supervised Grace’s day-to-day work and determined her salary and hours.  Although only the primary employer is responsible for giving required notices, providing FMLA leave, and maintaining health benefits, both primary and secondary employers must honor the FMLA leave and not engage in “retributory action.”  Significantly, the Court notes that the anti-retaliation provisions applicable to secondary employers apply even if the secondary employer may not be covered by FMLA.  Under 29 C.F.R. § 825.106(e), the secondary employer is responsible for “accepting the employee returning from FMLA leave in place of the replacement employee if the secondary employer continues to utilize an employee from the temporary or leasing agency.”

The Court ruled that Grace produced sufficient evidence to raise triable issues of fact as to whether USCAR’s decision to restructure its IT functions was unlawful discrimination or retaliation for Grace’s exercise of her FMLA rights.  Grace contended that the replacement employee, Spolarich, performed functions similar to those performed by her before her FMLA leave.  While Spolarich was contracted for fewer hours, he was paid at a higher rate such that the cost savings to USCAR was not significant.  Most damning was evidence of meetings notes where USCAR’s Director of Operations inquired as to Grace’s termination, and when apprised of a need for a “legitimate business reason” to avoid the risk of being sued, asked “can lawyers construct a way to make it [Grace’s termination] doable?”  The Court held these facts warranted a trier of fact to determine the true motive behind USCAR’s decision not to reinstate Grace after the expiration of her FMLA leave.

Employers who rely on staffing and placement agencies for its personnel needs are advised to review their policies with respect to FMLA compliance in relation to its “contracted” personnel.  If you have any questions about FMLA compliance with respect to an employee employed through a staffing agency, please contact us.

By Kent J. Sprinkle

Echoing the California Supreme Court's recent decision in Jones v. The Lodge at Torrey Pines Partnership et al., a California Court of Appeal has provided additional clarification on the holding that individual supervisors cannot be personally liable for retaliation under the FEHA.  Specifically, the Court of Appeal in Hammond v. County of Los Angeles et al., 73 Cal.Rptr.3d 690 (2008), held that individual supervisors cannot be personally liable for retaliation under the FEHA even when the claim of alleged retaliation by a supervisor is in response to an employee's complaint for harassment by the same supervisor (as opposed to a complaint for discrimination).  

Plaintiff Hammond, a nursing instructor employed by the Los Angeles County Sheriff's Department, sued her employer, the County, as well as her supervisor, alleging violations of the FEHA, including race and age discrimination, harassment and retaliation.  The County and her supervisor successfully moved for summary judgment and Plaintiff appealed.  On appeal, the summary judgment order was reversed.  However, the Court of Appeal held that the individual supervisor defendant was entitled to summary adjudication in her favor as to Plaintiff's claim for retaliation because such claims cannot be asserted against non-employer individuals.  Plaintiff argued that the Supreme Court's holding in Jones does not extend to claims alleging retaliation by a supervisor in response to an employee's report of harassment by that supervisor, and that Jones involved claims of retaliation by a supervisor in response to an employee's report of discrimination, not harassment.  Plaintiff argued that a supervisor who is allegedly liable for harassment should also be liable for retaliation against an employee who opposes or reports that harassment.  The Hammond court rejected this argument and instead concluded that "there is no sound basis for a distinction between retaliation for a complaint about discrimination on the one hand and retaliation for a complaint about harassment on the other." 

The Hammond court explained its reasoning in the following manner:  "The Supreme Court in Jones interpreted the FEHA as not imposing individual liability for retaliation.  The court said, 'In this case, we must decide whether the FEHA makes individuals personally liable for retaliation.  We conclude that the same rule applies to actions for retaliation that applies to actions for discrimination: The employer, but not non-employer individuals, may be held liable.'  The court's reliance on the discussion in Reno v. Baird, 18 Cal.4th 640, 643 (1998), pointing to the adverse consequences of subjecting supervisors to personal liability for personnel decisions, seems equally applicable to claims of retaliation based on reports of harassment.  It is true that under the FEHA a supervisor may be subject to personal liability for harassment, but not for discrimination.  But that distinction is of little significance in determining the question of whether a supervisor should personally be liable for retaliation under the FEHA.  The policy of protecting supervisors from 'the ever-present threat of a lawsuit each time they make a personnel decision' would seem to apply generally to retaliation claims, regardless of whether the alleged retaliation was in response to an employee's report of discrimination or harassment.  The idea that a supervisor has more incentive to retaliate for reports of harassment than for reports of discrimination is highly theoretical.  Accordingly, we hold that Brennan [the supervisor] cannot personally be liable for retaliation under the FEHA."

In analyzing this decision, as with Jones, employers should remain mindful that, although individual employees are not personally liable, employers are still liable for any unlawful retaliation, whether it relates to complaints of discrimination or harassment or something else.  Please contact us directly if you have any questions regarding the Hammond decision.

By Kent J. Sprinkle

A Plaintiff alleging racial discrimination and retaliation against his employer was ordered to pay the employer's attorneys' fees after the employer obtained summary judgment on all of Plaintiff's claims.  In Villanueva v. City of Colton, 160 Cal.App.4th 1188 (2008), Plaintiff was employed by the City of Colton in its wastewater division.  After being demoted to a lesser paying position following a reduction in force, the Court found that Plaintiff's demotion was due to legitimate non-discriminatory reasons, including Plaintiff's prior incident of mishandling an alarm incident and his lack of seniority based on continuous service.  The employer filed a motion for summary judgment and the essence of its position was that, in light of the negligent manner in which Plaintiff had handled the prior alarm incident, and the elimination of Plaintiff's position being due to the City's budget shortfall and resulting reduction in force, it had legitimate non-discriminatory reasons to defeat Plaintiff's claim of pretext for the demotion.  While Plaintiff attempted to introduce evidence of allegedly racial remarks by various individuals at the City, all of this evidence was properly excluded for various reasons.  Moreover, Plaintiff was removed from his higher-paying position instead of removing another employee holding the same position, who had more seniority, and the employee who was not demoted was also Hispanic, like Plaintiff, giving the Court further reason to believe that Plaintiff's demotion was not based on race.  

The employer sought an award of attorneys' fees to be paid by Plaintiff, based on California Government Code Section 12965(b), which authorizes an award of reasonable attorneys' fees and costs to the prevailing party in a FEHA case under certain circumstances.  The trial court awarded the employer nearly $40,000 in attorneys' fees.  The Court of Appeal affirmed the award, noting that the employer's entitlement to the award of attorneys' fees under the statute "cannot seriously be questioned" and further stated that "[i]ndeed, the record reflects overwhelming evidence that the lawsuit was unfounded, unreasonable, and frivolous."  

Plaintiff argued that the trial court was required to take into consideration his ability to pay when making a fee award.  However, the Court of Appeal held that the award of attorneys' fees was proper because the Plaintiff offered no evidence of any kind regarding his inability to pay.  The Court of Appeal noted that, in responding to the employer's request for attorneys' fees, the Plaintiff could easily have offered a declaration setting forth his income and other information that would lend support to his position.  Thus, the Court of Appeal held that even though it agreed "that a trial court has an obligation to consider a losing party's financial status before assessing attorney fees under the FEHA, on the record before us we are unable to say that the court's fee award was an abuse of discretion."

The U.S. Equal Employment Opportunity Commission ("EEOC") recently issued a press release advising that a total of 82,792 discrimination charges were filed last year.  According to the EEOC, this was the highest volume of incoming charges since 2002, and the largest annual increase (9%) since the early 1990s.  The most frequently alleged forms of discrimination were based on race (with a 12% increase), retaliation (up 18% to a record high level) and sex (up 7%), although nearly all classifications posted increases from the previous year.  The EEOC also noted that pregnancy discrimination and sexual harassment claims appear to be trending upward trend – pregnancy discrimination charges increased 14% from the previous year, and sexual harassment filings increased for the first time (4%) since 2000.  Notably, a record 16% of sexual harassment charges were initiated by men.

When the economy slows down, it is not uncommon to see an increase in discrimination filings.  The EEOC has recognized this, opining that the increased filings have come about, in part, because of changing economic conditions.  Employers are therefore advised to remain vigilant in the enforcement of anti-discrimination, harassment and retaliation policies, and to ensure that supervisory employees receive all legally required training.  Please contact us directly to discuss any questions you may have relating to your obligations to prevent discrimination and harassment in the workplace.

Employers and managers received some welcome news yesterday when the California Supreme Court ruled in Jones v. The Lodge at Torrey Pines Partnership that supervising employees could not be held personally liable in cases alleging claims of retaliation. 

In Jones, a jury returned a verdict against the employer and an individual defendant supervisor, finding both liable for retaliating against an employee who had made a sexual orientation discrimination complaint.  In reversing the appellate court's decision affirming that verdict, the California Supreme Court found that the statutory language prohibiting retaliation did not plainly provide for personal liability on retaliation claims.  Drawing an analogy to discrimination claims, which also do not provide for personal liability of individual employees, the Court stated that:

“All of these reasons for not imposing individual liability for discrimination – supervisors can avoid harassment but cannot avoid personnel decisions, it is incongruous to exempt small employers but to hold individual non-employers liable, sound policy favors avoiding conflicts of interest and the chilling of effective management, corporate decisions are often collective, and it is bad policy to subject supervisors to the threat of a lawsuit every time they make a personnel decision – apply equally to retaliation.” 

Based upon these policy considerations, the ambiguous statutory language, and a review of legislative history, the Court held that there was no personal liability for retaliation claims.

In analyzing this decision, employers should be mindful that, although individual employees are not personally liability, employers are still liable for any unlawful retaliation.  Please contact us directly if you have any questions regarding the Jones decision.

Posted by Nancy G. Berner

In its unanimous decision in Sprint/United Management Co. v. Mendelsohn, an age discrimination case, the U.S. Supreme Court explicitly directed a lower court to question the relevancy of testimony by co-workers who claimed they were also subjected to age discrimination, but who played no role in the discrimination allegedly suffered by the plaintiff.

In that case, a former 51-year old Sprint employee alleged that she had been selected to be part of a reduction-in-force because of her age, and attempted to present evidence that five other former employees had also been unfairly treated due to their age.  None of the five witnesses had worked in the same group as plaintiff or under the supervisors in her chain-of-command.  The trial court held that this so-called "me too" evidence was both unfairly prejudicial and irrelevant because those workers were not similarly situated given that their work had not been overseen by any of plaintiff's direct supervisors; this ruling was subsequently interpreted to mean that such "me too" evidence was per se prohibited in such cases.

The U.S. Supreme Court, however, found that such evidence is neither per se admissible nor per se inadmissible.  Specifically, the Court held that the appropriate methodology in such cases would be a fact intensive, case-by-case approach, including an analysis of how closely related the evidence is to the plaintiff's circumstances and theory of the case. 

In practical terms, even if the evidence is determined to be relevant, the court must still then determine whether it should be presented to a jury, especially where it could be highly prejudicial to the defendant, also requiring a fact intensive, case-by-case approach.  Please contact us directly to discuss any questions you may have relating to the impact of this decision as it relates to your business.

Posted by Christopher M. Robertson

Hammond v. County of Los Angeles illustrates that an employer's success at the appellate court level can be just as dependent on the luck of the draw as at the trial court level.  Specifically, in that case the dissenting justice had a completely different view of what constitutes an adverse employment action and sufficient evidence of discrimination than the two justices who reversed the trial court's order granting the employer's motion for summary judgment. 

To be actionable under California's Fair Employment and Housing Act (FEHA), the discriminatory or retaliatory adverse employment action must materially affect the terms, conditions or privileges of employment, and must have occurred during the one year preceding the filing of the DFEH complaint.  The majority opinion in Hammond found that a reduction in teaching assignments for the plaintiff, a nursing instructor, was sufficient to constitute an adverse employment action, and although that reduction began before the applicable statute of limitations period, such an adverse employment action was not time-barred because it continued into the applicable statute of limitations period.  The dissenting justice, on the other hand, rejected the majority's contention that the reduction in teaching assignments constituted an adverse employment action because it relegated the plaintiff to "some undefined, but lesser, status," and criticized the majority opinion for "essentially allowing an infinite period of limitations." 

The California Supreme Court announced today that it granted the petition for review filed by Google in that company's continued appeal of an age-discrimination action filed by one of its former employees. 

Specifically, and as reported in a previous entry on this blog, the plaintiff in Reid v. Google, Inc. (who was 54 years old at the time of his termination) claimed he had been called “fuzzy,” “sluggish,” and “lethargic” at work, and that he had been told his ideas were "obsolete" and "too old to matter."   After the trial court granted Google's summary judgment motion, plaintiff appealed the decision.  The appellate court found that these comments were not, as a matter of law, "stray remarks," and that the plaintiff should consequently be allowed to pursue his claims (click here to review that decision).  Google has now appealed from that ruling, seeking relief from the California Supreme Court, which has agreed to hear the matter.

We will continue to provide updates as this case makes its way through the Court.  In the interim, please contact us directly to discuss any questions you may have relating to this matter.

Posted by Robin E. Weideman

Earlier today the California Supreme Court issued its long-awaited decision in Ross v. RagingWire Telecommunications, Inc. and held that an employee who was fired for failing a drug test due to medical marijuana use does not have a valid claim for disability discrimination or wrongful termination against the employer. 

The plaintiff in that case applied for and was offered a position as a systems administrator with RagingWire.  In connection with his hiring, he was required to take a drug test, and three days later started work for RagingWire.  Later the same week, RagingWire received plaintiff's drug test results, which were positive for marijuana, and suspended plaintiff.  Plaintiff provided RagingWire with a doctor's note explaining that he was medically prescribed marijuana to treat chronic back pain.  Notwithstanding the doctor's note, RagingWire terminated plaintiff's employment.

Plaintiff subsequently sued RagingWire for disability discrimination and failure to accommodate a disability under the California Fair Employment and Housing Act.  He also alleged a claim for wrongful termination in violation of public policy, arguing that RagingWire's termination of his employment contravened the public policy behind California's Compassionate Use Act (the California statute exempting users of medically prescribed marijuana from criminal liability under certain state laws). 

Posted by Sarah N. Drechsler

A recent MSNBC article reports on the all-time high number of racial harassment cases filed by employees in 2007.  Experts believe that the increase in cases may be caused by several factors, including the influx of Gen-Yers into the workplace who are more likely to report harassment than baby boomers, relaxed company standards due to perceived nationwide strides against discrimination, and stresses in the workplace due to the sluggish economy. 

This article is a useful reminder that, even in 2008, racial insensitivity continues to be a major problem in the workplace, such that employers must remain vigilant in their efforts to maintain a harassment-free workplace.  Please contact us directly to discuss any questions relating to racial harassment in your workplace.

The U.S. Supreme Court will attempt to harmonize differing appellate court rulings by deciding whether the Americans with Disabilities Act (“ADA”) requires an employer to give a disabled employee a preference in job reassignments.

In Huber v. Wal-Mart, Huber was employed by Wal-Mart in the position of dry grocery order filler. She was subsequently injured and was unable to perform the duties of her original position. Huber sought reassignment to the vacant position of router as a reasonable accommodation under the ADA. Another employee, however, was selected for that position because he allegedly possessed better qualifications, being employed by Wal-Mart for six years longer than Huber and having a higher evaluation score.   The parties stipulated that the position of router was equivalent to her former position and that Huber was qualified for the position. Huber was ultimately reassigned to a maintenance position that paid approximately half of what she made in her prior position. 

Huber argued that Wal-Mart should have reassigned her to router as a reasonable accommodation. Wal-Mart argued that to automatically assign her to the router position, when she was not the most qualified applicant, would violate its nondiscrimination policy. The District Court granted Huber’s motion for summary judgment and Wal-Mart appealed the grant of summary judgment to the Eighth Circuit Court of Appeals.

Posted by Mark S. Spring

Yesterday, the House of Representatives in Washington D.C. passed the Employment Non-discrimination Act, a bill that provides protections against discrimination in the workplace for gay men, lesbians and bisexuals that are similar to the federal protections already in place for older workers, minorities and disabled workers under the federal ADEA, Title VII and Americans With Disabilities Act.  For those interested in the politics of this event, 35 Republicans joined 200 Democrats voting for the bill, while 25 Democrats voted against the bill.  The overall vote was 235-84. 

While this is big news in today's newspapers, it probably will have little impact in California for two reasons:

1.         Although this bill will also likely pass through the Senate, most expect President Bush to veto the measure and there are not sufficient votes to override such a veto; and,

2.         Even if it became law, California's Fair Employment and Housing Act already offers virtually all the same protections as this bill and is actually much broader, offering similar protections to any individual discriminated against based on being transgender or based in any way on their gender identity (see 2004 amendments - AB 196). 

Thus, while the path of this bill may have some interesting political ramifications and could influence how gay voters cast their ballots in 2008, for California employers it will have little practical workplace impact no matter whether it is enacted, defeated, or vetoed.

A California court of appeal recently gave another stark reminder to employers that certain terminology may be seen by courts as covert ageism and open the door to claims of age discrimination. In Reid v. Google, Inc.,____ Cal. App. 4th ____ (2007), a California court of appeal reversed a superior court’s grant of summary judgment on the plaintiff’s age discrimination claims. The plaintiff was over 50 years old and worked for Google, Inc. He offered statistical evidence of age discrimination at Google, purporting to show that there was a relationship between age of Google employees and their performance ratings and bonuses received. In addition, he also offered as evidence the alleged ageist remarks of a supervisor, who the plaintiff claimed had stated that the plaintiff did not fit into “the culture” of Google. The plaintiff also alleged that he was called “fuzzy,” “sluggish,” and “lethargic” and that he was told that his ideas were "obsolete" and "too old to matter."  Finally, the plaintiff argued that the reasons given to him for his termination when he was terminated differed from the reasons presented to the court by Google in its motion for summary judgment.    

Based upon these facts, the appellate court reversed the superior court’s grant of summary judgment on the plaintiff’s age discrimination claims, finding that, when combined with the statistical evidence, the alleged comments from the plaintiff’s supervisor were not, as a matter of law, “stray remarks.”  Thus, the court found that the plaintiff had presented enough evidence to create a triable issue of fact concerning his claims of age discrimination against Google, and sent the case back to the Superior Court to allow it to proceed.   Reid v. Google should serve as a reminder to employers to avoid terms that may double as ageist remarks, even if they do so indirectly.  For the full text of the court’s decision, click here.    

Posted by Nancy G. Berner

In a recent 4-3 decision, the California Supreme Court concluded that employees who allege disability discrimination based on California's Fair Employment and Housing Act ("FEHA") must prove that they can perform their essential job functions, with or without accommodation.  With this ruling, the Court resolved a split in authority, and aligned FEHA requirements with those of the Americans with Disabilities Act, its federal counterpart.

What Happened

The controversy in Green v. State of California stemmed from a disagreement between the plaintiff and his employer, the Department of Corrections ("DOC"), about whether or not the employee was able to perform the job functions of a stationary engineer.  The DOC maintained that the fatigue caused by the employee's ongoing treatment for Hepatitis C rendered him permanently unable to work, and denied his request to return to his position.  The employee filed a lawsuit seeking recovery for disability discrimination; both the trial and appellate courts held that FEHA required the DOC to establish that plaintiff was incapable of doing his job.  The California Supreme Court, however, disagreed: Plaintiff and all employees who claim disability discrimination in the future bear the burden of proving that they are able to perform the essential functions of their jobs.

What it Means for California Employers

The Supreme Court’s ruling is unambiguous.  FEHA prohibits employers from drawing distinctions based on physical and mental disability “only if the adverse employment action occurs because of a disability and the disability would not prevent an employee from performing the essential duties of the job, at least not without reasonable accommodation.”  Therefore, it is now incumbent upon employees to prove that they can perform their jobs.  Nonetheless, from a practical point of view, it still behooves employers to carefully evaluate a disabled employee’s ability to perform the job, and carefully review potential reasonable accommodations.  In other words, even though employees must demonstrate that they can do the job, employers are well advised to conduct careful, good faith investigation to determine whether a reasonable accommodation can be provided to help minimize a plaintiff's potential for recovery in such cases.

For specific questions concerning compliance, please contact us directly.

Posted by Nancy G. Berner

On July 18, 2007, the Office of Administrative Law approved the Fair Employment and Housing Commission’s oft-submitted regulations implementing AB 1825.  The newly-titled “Sexual Harassment Training and Education” regulations (California Code of Regulations §7288.0) become effective on August 17, 2007 and are available online by clicking here.  Briefly, the adopted regulations require:

• Effective, interactive training, via either classroom, interactive computer programming, internet based seminar, or a combined use of audio, video or computer technology in conjunction with any of these three methods. Importantly, the training must be interactive; if a trainer is not present, one must be available to answer questions within two business days after the question is asked. 
• Tracking -- The biennial two-hour training can be tracked either by the individual, or by a “training year” method in which the employer designates training years for all supervisors, e.g. 2007, 2009, 2011, etc.  Note, however, that new employees must be trained within six months of hire, so those hired in non-training years will actually be retrained sooner than required by the regulations.  A record of who received the training, when, what type and from whom must be maintained for two years.
• Covered Employers are those with 50 or more employees, regardless of the employee locations.  However, only supervisors located in California are required to receive training.
• Trainers must be highly qualified.  For example, attorneys can be trainers, but only two or more years after their admission to a state bar, and if their practice includes employment law.

Posted by Vanessa W. Whang

On May 29, 2007, the United States Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Co., Inc., a case involving a Title VII claim for sex discrimination.  Lilly Ledbetter worked for Goodyear for 19 years and claimed that her past performance evaluations were discriminatory based on her sex because they caused her to be earning significantly less than her male counterparts at the time of her retirement in 1998.  Ledbetter filed a EEOC questionnaire in March 1998.  Relying on the "paycheck accrual rule," she claimed that the paychecks she received up to the date of her retirement were unlawful because they would have been larger is she had been evaluated in a non-discriminatory way prior to the EEOC charging period (180 days prior to her filing her EEOC questionnaire). 

A split (5-4) U.S. Supreme Court held that because Ledbetter did not assert that any of the pay decisions made within 180 days of her filing of her EEOC questionnaire were discriminatory, her claims were time-barred.  The Supreme Court held that "the EEOC charging period is triggered when a discrete unlawful practice takes place.  A new violation does not occur, and a new charging period does not commence upon the occurrence of subsequent non-discriminatory acts that entail adverse effects resulting from past discrimination.  But of course, if an employer engages in a series of acts, each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed."

This decision is helpful to employers as it helps define how statutes of limitations will be analyzed in discrimination cases where continuous violations are alleged.  In addition, it will likely help eliminate employees from bringing stale claims back to life simply by adding continuous violations type allegations that are not supported with real evidence.  However, this decision may have the practical effect of prompting employees to file Title VII charges more quickly because of the Supreme Court's strict statute of limitations ruling.  It should be noted that this case is limited to Title VII pay claims and it is unclear whether the reasoning of Ledbetter will be adopted in other contexts.  In addition, employees may still make disparate pay claims under other federal and state laws which may have different statute of limitations and administrative exhaustion requirements.

Posted by Ursula Kubal

Jones v. The Lodge at Torrey Pines Partnership, 147 Cal. App. 4th 475 (2007)

The totality of circumstances must be considered in determining whether an adverse action has been taken against a plaintiff in retaliation and discrimination cases.

Plaintiff employee sued under the California Fair Employment and Housing Act ("FEHA"), for sexual orientation discrimination by defendant employer and retaliation by the employer and defendant supervisor. Following a jury verdict for plaintiff, the trial court granted defendants' motions for judgment notwithstanding the verdict ("JNOV") and a new trial. Using the standards laid out in MacRae v. Department of Corrections & Rehabilitation, 142 Cal App. 4th 377 (2006), the trial court found that there was insufficient evidence of an adverse employment action for purposes of establishing sexual orientation discrimination or retaliation, because none of the alleged retaliatory acts had a tangible detrimental effect on plaintiff's employment.

The California Court of Appeal reversed both trial court rulings and reinstated judgment in favor of plaintiff. The appellate court found that the trial court had used an overly restrictive definition of adverse employment action, because it considered only actions that had a substantial and detrimental affect on plaintiff's employment, including plaintiff's poor performance review and several written criticisms of plaintiff's employment. Under a totality of circumstances approach, there was sufficient evidence of an adverse employment action. The evidence favorable to the jury's finding of an adverse employment action, which was not considered by the trial court, included evidence that after plaintiff asked the supervisor to refrain from making derogatory remarks about women and homosexuals, the employee received warning notices based on false charges and was excluded from meetings, and the supervisor continued to use offensive language despite being asked to stop. Finally, the Court of Appeal affirmed that under FEHA, an individual supervisor can be held personally liable for retaliation.

Plaintiff John Singleton was hired in February 2002. He was suspended and ultimately terminated on December 27, 2002 for making a comment about bringing a gun to work and shooting people if he had to work on Christmas. The plaintiff sued, claiming that his coworkers had repeatedly taunted him with sexually themed comments, and that these comments constituted harassment "because of ... sex." He claimed he also made frequent verbal complaints to his supervisors, but was always told to just ignore the taunts.

The trial court granted summary judgment in favor of the defendant employer on the plaintiff's FEHA-based claims, but the appeals court reversed, finding that plaintiff had raised genuine issues of material fact regarding whether he was sexually harassed, whether he reported the harassment to his supervisors, and whether action was taken to correct and eliminate the harassment. The court reasoned that the plaintiff's testimony about his coworkers' graphically sexual comments to him would, if believed, show that he experienced a hostile environment "because of [his] sex." Because the coworkers' comments would "challenge [him] as a man," thus attacking plaintiff's heterosexual identity, they constituted discrimination "because of ... sex." Singleton v. U.S. Gypsum Co., 2006 DJDAR 8758 (2d Dist., Div. 8, July 3, 2006).

Under state and federal law, employers have an affirmative duty to provide "reasonable accommodation" for "disabled" workers. This obligation includes a requirement to engage in a good faith "interactive process," in which the parties discuss the employee's limitations and explore possible accommodations.

The recent California appellate decision of Gelfo v. Lockheed Martin Corp., addressed a common dilemma for employers -- what to do when an employee claims he is "100% healthy" but the written medical restrictions contained in his file tell a different story.

In Gelfo, the plaintiff had suffered a back injury and obtained workers compensation benefits based on medical reports stating that he was "permanently disabled" and restricted from "prolonged sitting or standing." Within a month of settling his workers compensation claim for a lump sum cash payment, however, the employee requested rehire on the ground that he was now totally recovered.

Governor Schwarzenegger recently signed a bill, AB 1825, which requires all California employers with 50 or more employees to provide two hours of sexual harassment training to all supervisors once every two years. Specifically, supervisory employees employed as of July 1, 2005 must be given two hours of sexual harassment training by the deadline of January 1, 2006. (However, employers who have already provided sexual harassment training to their supervisory employees after January 1, 2003, do not need to comply with the January 1, 2006 deadline.) Any "new supervisory employees" must be given two hours of sexual harassment training within six months of their assumption of a supervisory position. Thereafter, employers are required to give their supervisory employees the sexual harassment training once every two years. To the extent there is a question of whether or not an individual qualifies as a supervisor, employers should err on the side of caution and provide the sexual harassment training. Under other California statutes and case law, the term "supervisor," has been defined very broadly. See e.g., Gov't Code § 12926(r).

The training must consist of "information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment." Training should include practical examples aimed at instructing supervisors in the prevention of harassment. Those who provide the training must have "knowledge and expertise in the prevention of harassment, discrimination and retaliation."

Failure to provide the training does not, in and of itself, result in strict liability for the employer in the event an employer is sued for sexual harassment. While the specific statutory penalty only consists of an order from the FEHC to comply, questions abound as to the legal effect of noncompliance in areas such as negligence, failure to take reasonable steps to prevent harassment, representative action liability under Business and Professions Code § 17200 claims. Whether or not such an argument would prevail is currently up in the air and will be decided by the courts.