Discrimination

June 2020 employment law decisions

Airline workers are protected by California’s wage and hour laws only if the base of work operations is in California.

June 29, 2020, California Supreme Court, Charles E. Ward v. United Airlines, Inc. and Felicia Vidrio v. United Airlines Inc.; Dev Anand Oman v. Delta Airlines, Inc.: Pilots (Ward and Vidrio case) and flight attendants (Oman case) sued their airline employers for violations of California’s minimum wage (Oman case) and wage statement (both cases) laws. The California Supreme Court decided that the laws apply only to those pilots or attendants who have their base of work operations (principal place of work) in California, regardless of their place or residence or whether a collective bargaining agreement governs their pay.

Federal law prohibiting discrimination in the workplace includes discrimination based on sexual orientation and gender identity.

June 15, 2020, U.S. Supreme Court, Bostock v. Clayton County, Georgia: The Civil Rights Act of 1964 (Title VII) prohibits discrimination in the workplace based on sex. The question for the U.S. Supreme Court was whether the prohibition applies when an employer terminates an employee based on their sexual orientation or gender identity. The high court concluded that “[t]he answer is clear” because an employer who fires and individual for being homosexual or transgender does so for traits or actions it would not have questioned in members of a different sex. The Supreme Court acknowledged that those who adopted the Act might not have anticipated this result, but the express terms of the law provided the court with its answer.

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April 2020 employment law decisions

Gender discrimination verdict reversed based on trial court’s series of errors.

April 23, 2020, Second District Court of Appeal, Lauren Pinter-Brown v. The Regents of the University of California: Dr. Pinter-Brown sued The Regents for gender discrimination and a jury found in her favor and awarded $13 million in damages. The appellate court reversed because the trial court committed a series of errors that prejudiced The Regents’ right to a fair trial by an impartial judge: (1) the court delivered a presentation to the jury highlighting major figures in the civil rights movement and told the jury it was their duty to stand in the shoes of Dr. Martin Luther King; (2) the court allowed the jury to hear about and view a long list of discrimination complaints from across the entire UC system that were not connected to Dr. Pinter-Brown’s circumstances or theory of the case; (3) the court allowed the jury to learn the contents and conclusion of a report documenting racial discrimination occurring throughout the entire UCLA campus; and (4) the court allowed Dr. Pinter-Brown to resurrect a retaliation claim after the close of evidence despite having dismissed that claim prior to trial.

After-acquired evidence may be used in federal disability discrimination cases for the issue of whether the employee was qualified for their position.

April 17, 2020, Ninth Circuit Court of Appeal, Sunny Anthony v. TRAX International Corporation: Ms. Anthony sued TRAX for disability discrimination. During the course of the case, TRAX discovered that Ms. Anthony lacked a required degree for the position she held. The Ninth Circuit concluded that this “after-acquired evidence” could be used by TRAX to show that Ms. Anthony was not qualified for her position, and, therefore, not protected under the federal disability discrimination law.

Staffing agencies uninvolved in promotion decisions cannot be held liable for a failure to promote claim.

April 7, 2020, Second District Court of Appeal, Bonnie Ducksworth v. Tri-Modal Distribution Services et al.: Ms. Ducksworth and another employee, Pamela Pollock, sued Tri-Modal and two staffing agencies that supplied them to Tri-Modal for race discrimination in promotion decisions. The appellate court affirmed the dismissal of the case against the staffing agencies because they were uninvolved in Tri-Modal’s decisionmaking about whom to promote. Ms. Pollack also had a harassment claim against Tri-Modal’s executive vice president arising from promotion decisions. The Second District also affirmed the dismissal of Ms. Pollack’s case against the executive vice president because it was filed too late (statute of limitations). It determined that the statute of limitations began running when Tri-Modal told employees they have been given a promotion (and not when the promoted worker started the new work).

Federal sector employees may prove age discrimination without showing their age was the but-for cause for an adverse employment action.

April 6, 2020, U.S. Supreme Court, Babb v. Wilkie, Secretary of Veterans Affairs: The high court decided that the age discrimination law for federal-sector employees does not require a showing that age was a but-for cause of an adverse employment action. The law’s language that “all personnel actions affecting employees or applicants for employment who are at least 40 years of age…shall be made free from any discrimination based on age” creates a more protective standard as compared to the law covering state and private sector employees. At the same time, in order to recover reinstatement, backpay, and compensatory (non-economic) damages, federal employees must satisfy the but-for cause standard.

Payment of accrued vacation time required even when there is no specific time off limit.

April 1, 2020, Second District Court of Appeal, Teresa McPherson v. EF Intercultural Foundation, Inc.: California’s Labor Code requires an employer to pay all unused, vested (accrued or earned) vacation time when an employee separates. The court of appeal decided that under the circumstances of this particular case, this requirement applied to the employer’s paid time off policy in which it did not promise its employees a specific amount of paid vacation that they would accrue or expressly tell them the paid time off was unlimited (and a limit was implied). But the Second District also stated that the requirement to pay vested vacation time does not apply to all unlimited paid time off policies.

Posted by deanroyerlaw in Employment

October and November 2019 employment law decisions

Federal employee’s case that named the wrong defendant is still timely.

November 14, 2019, Ninth Circuit Court of Appeals, Alisha Silbaugh v. Elaine Chao: Ms. Silbaugh filed her case concerning her employment with the Federal Aviation Administration within the time limits (statue of limitations) but named the wrong defendant. After the limitations period ran, the FAA moved to dismiss the action on grounds the case had to be filed against the head of the executive agency to which the FAA belongs. Ms. Silbaugh responded by filing an amended complaint that named the Secretary of Transportation (Ms. Chao) as the defendant. The district court denied FAA’s motion to dismiss as moot. Ms. Chao filed a motion to dismiss on grounds the amended complaint was not timely because it did not “relate back” to the original complaint. The district court agreed. On appeal, the Ninth Circuit reviewed a federal rule of civil procedure (15(c)) that provides that an amendment relates back to the original complaint when a United States officer or agency is added as a defendant if the original complaint and summons was served on the United States attorney, the Attorney General, or the officer or agency within a 90-day period. Because Ms. Silbaugh timely served the United States attorney and Attorney General her amendment to re-name the defendant related back. Accordingly, the Ninth Circuit reversed the dismissal.

Disability discrimination need not be based on animus or ill will.

November 13, 2019, Second District Court of Appeal, John Glynn v. Superior Court of Los Angeles County: Mr. Glynn sued his employer for disability discrimination. The case arose from a temporary benefits staffer mistakenly thinking Mr. Glynn had transitioned from short term disability to long term disability and was unable to work with or without an accommodation. On that basis, the staffer terminated Mr. Glynn. For months the employer ignored Mr. Glynn’s efforts to correct the misunderstanding. The issue before the court of appeal was whether this constituted direct evidence of disability discrimination. Under the direct evidence method of proof the employee must show that his employer knew of his disability and the disability was a substantial motivating reason for an adverse employment action such as termination. The court of appeal reviewed a prior appellate decision in which the court concluded that animus or ill will was not required to prove discriminatory intent; rather, the disability discrimination law protects employees from erroneous or mistaken beliefs about the employee’s disability. In this case, the termination letter stated that Mr. Glynn’s employment ended due to his inability to return to work with or without an accommodation. As a result, the court of appeal concluded that Mr. Glynn’s case could not be dismissed (summary judgment).

Each payment of an alleged discriminatory disability check triggers a new statute of limitations period.

October 31, 2019, First District Court of Appeal, Joyce Carroll v. City and County of San Francisco: Ms. Carroll sued her former employer as a class representative claiming that San Francisco discriminated based on age by providing reduced disability retirement benefits to older employees who took disability retirement after working for the City for less than 22.22 years. A required administrative charge with the Department of Fair Employment and Housing was filed more than 17 years after Ms. Carroll retired. The trial court dismissed the case (demurrer) on grounds the DFEH charge was filed too late (statute of limitations). The court of appeal decided that the one-year limitations period started each time Ms. Carroll received a discriminatory disability payment. Therefore, the dismissal was reversed.

Employer’s service charge may be considered a tip that must be distributed to employees.

October 31, 2019, First District Court of Appeal, Lauren O’Grady v. Merchant Exchange Productions, Inc.: Ms. Grady sued her employer as a class representative asserting a failure to distribute tips (gratuities). Merchant Exchange Productions added a mandatory “service charge” to the contract for every banquet facility it provided and distributed only some of the charge to managerial employees who did not serve food and beverages at the banquet. Ms. Grady alleged that she and other employees who served food and beverages were entitled to the entire service charge as a tip as required by California’s Labor Code (section 351). The court of appeal decided that a service charge can meet the Labor Code’s definition of a tip and that Ms. O’Grady’s complaint sufficiently alleged a violation of law.

Posted by deanroyerlaw in Employment

July 2019 employment law decisions

On-duty meal periods subject to the 30-minute minimum requirement.

July 31, 2019, First District Court of Appeal, L’Chaim House, Inc. v. Division of Labor Standards Enforcement: Residential care home is required to provide meal periods of at least 30 minutes even when they are “on-duty” periods, i.e., the nature of the work prevents the employees from being relieved of all duty and the employer and employees agree in writing to an on-the-job paid meal period.

Anti-SLAPP motions available in discrimination or retaliation cases but not in this particular case.

July 22, 2019, Supreme Court of California, Stanley Wilson v. Cable News Network, Inc.: The anti-SLAPP statute (special motion to strike claims that arise from the defendant’s constitutionally protected activity) may be used to screen claims alleging discriminatory or retaliatory employment actions because the defendant’s adverse action is a necessary element of such claims. Mr. Wilson’s claim that his employer defamed him by privately discussing the alleged reasons for his termination with potential employers and others is not subject to the anti-SLAPP statute because the communications were not made in connection with any issue of public significance.

Employees have sufficient evidence for discrimination and harassment claims.

July 17, 2019, Third District Court of Appeal, Nancy Ortiz v. Dameron Hospital Association and Shirley Galvan v. Dameron Hospital Association: The facts were disputed whether Dameron constructively terminated Ms. Ortiz and Ms. Galvan because there was evidence that their supervisor intentionally created working conditions that would cause a reasonable person to feel compelled to resign. The facts were also disputed whether the supervisor acted with national origin discrimination motive based on evidence that the supervisor focused her criticisms on subordinates’ accents and English language skills. The facts were further disputed whether Ms. Ortiz and Ms. Galvan were subjected to unlawful harassment given the evidence of the supervisor’s criticisms of accents and English-speaking skills and references to subordinates’ ages, including calling them “too old”; and in Ms. Ortiz’s case, the additional evidence of being transferred to a unit where she had little or no experience and provided with no training, being falsely accused of sleeping on the job, and being told she would likely be fired.

Jury verdict in favor of employee in race discrimination and retaliation case affirmed.

July 17, 2019, Third District Court of Appeal, Wendell Brown v. City of Sacramento: Mr. Brown could recover for a suspension that occurred more than one year before he filed a complaint with the Department of Fair Employment and Housing (DFEH) because the suspension did not become final until a union grievance challenging it was dismissed within the one-year statute of limitations period. Mr. Brown could also recover for a transfer that had been announced but not scheduled to take effect until after he filed his DFEH complaint. Although the DFEH complaint did not refer to the specific transfer, it included general language about being forced to transfer and the DFEH investigation would have likely uncovered the specific transfer at issue.

Employer not required to reimburse its employees for purchasing slip-resistance shoes.

July 8, 2019, Third District Court of Appeal, Krista Townley v. BJ’s Restaurants, Inc.: BJ’s Restaurants has a safety policy that requires its employees to wear slip-resistance shoes, although no specific brand, style, or design is required and the policy does not prohibit the employees from wearing their shoes outside of work. The California law requiring employers to reimburse their employees for expenses incurred in the discharge of their work duties (Labor Code section 2802) does not apply because the shoes are non-uniform work clothing and generally usable in the restaurant occupation.

Posted by deanroyerlaw in Employment

June 2018 employment law decisions

Wage payments based on rounding off hours worked to the nearest quarter hour approved.

June 25, 2018, Second District Court of Appeal, AHMC Healthcare v. Superior Court: Employees of AHMC Healthcare sued their employer for failure to pay wages and other claims. California law requires employers to pay their employees for all time the employees are at work and subject to the employers’ control. The issue was whether an employer’s use of a payroll system that automatically rounded employee time up or down to the nearest quarter violates the law. The Second District reviewed federal courts interpreting federal law on the issue, which have approved computation of worktime by rounding to the nearest quarter of an hour provided that the rounding system will not result, over a period of time, in failure to compensate employees for all time actually worked. It then noted that California’s wage laws are patterned on federal laws and California courts may look to federal court decisions for guidance. The appellate court pointed to two recent federal decisions where a slight majority of employees losing time over a defined period was not sufficient to invalidate an otherwise neutral rounding practice. The Second District concluded that the payroll system did not violate the law because it was neutral on its face (i.e., applied to all employees) and in practice (at one location, a minority of employees lost time but AHMC compensated employees as a whole for 1,378 hours not worked; at a second location, a slight majority of employees lost time but AHMC compensated employees as a whole for 3,875 hours not worked).

Trial court erred by excluding testimony regarding text messages and “me too” evidence in harassment case.

June 21, 2018, Fourth District Court of Appeal, Natasha Meeks v. Autozone, Inc.: Ms. Meeks sued Autozone and one of its employees for sexual harassment. The case went to trial and the jury found in favor of the defendants. On appeal, Ms. Meeks challenged rulings by the trial court excluding evidence from the trial. One ruling concerned text messages from the alleged harasser sent to Ms. Meeks that were of a sexual nature. Because neither Ms. Meeks nor the alleged harasser had possession of the messages, the trial court excluded testimony at trial regarding the specific content of the messages, including words and pictures. The Fourth District rejected the trial court’s justification for its ruling on grounds of fairness because Ms. Meeks’s memory of the content of the messages was not speculation. Furthermore, the alleged harasser could dispute Ms. Meeks’s testimony regarding the specific content by testifying based on his memory. Finally, evidence of the words and pictures was not subject to the hearsay rule because it would not be offered for the truth of the content, but rather to show that the alleged harasser sent the messages. A second ruling excluded evidence concerning sexual harassment of other employees by the alleged harasser (“me to” evidence). The Fourth District concluded that the trial court’s ruling reflected a misunderstanding of the law which allows for admission of this type of evidence.

Administrative decision to uphold termination precludes civil case for discrimination and harassment.

June 21, 2018, Fourth District Court of Appeal, Carol Wassmann v. South Orange County Community College District: Ms. Wassmann sued the District for discrimination (age and race) and harassment. The trial court dismissed the case (summary judgment) on grounds an administrative proceeding provided by the District that upheld Ms. Wassmann’s termination precluded the civil case. On appeal, the Fourth District agreed that the discrimination and harassment claims were barred by the adverse administrative decision. The proceeding was sufficiently judicial in character (e.g., a hearing before an administrative law judge) and Ms. Wassmann could have objected to her proposed termination on grounds of discrimination. Because Ms. Wassman was unsuccessful in getting the administrative decision reversed (writ proceeding) she could not pursue her claims in court.

Dismissal of discrimination, harassment, and retaliation case upheld.

June 11, 2018, Ninth District Court of Appeals, Patricia Campbell v. State of Hawaii Department of Education: Ms. Campbell worked as a high school teacher. She sued her employer claiming discriminatory treatment, hostile work environment, and retaliation for complaining of harassment. The trial court dismissed the case (summary judgment). On appeal, the Ninth Circuit affirmed the dismissal of the discrimination claim on grounds there was no evidence that she was subjected to an adverse action. Ms. Campbell pointed to the Department’s loss of a performance evaluation but she did not identify any evidence to show that the loss could have materially affected the terms or conditions of her employment. In addition, the appellate court rejected Ms. Campbell’s assertion that the Department’s decision to investigate her was an adverse action because the Department allowed her to continue to teach without any changes both during and after the investigation despite findings of misconduct. Furthermore, the Ninth Circuit concluded that the Department’s denial of Ms. Campbell’s request to transfer to another school was not an adverse action because the evidence did not support a finding that she had a right to a transfer because she failed to go through the proper procedures. Finally, the court of appeals affirmed the dismissal of the discrimination claim on grounds that Ms. Campbell did not present any evidence to show that similarly-situated employees were treated more favorably. As for the hostile work environment claim, the Ninth Circuit affirmed the dismissal because the evidence showed the Department took prompt corrective measures regarding the alleged student conduct directed at Ms. Campbell by investigating Ms. Campbell’s complaints and disciplining the students it found to have engaged in misconduct. With respect to the retaliation claim, the appellate court concluded that the investigation could be an adverse action under the broader standard for retaliation claims. Nevertheless, it affirmed the dismissal on grounds there was no evidence to show that the Department’s stated reason for the investigation—receipt of multiple allegations of misconduct—was a pretext for retaliation.

Release of worker’s compensation claim did not also release discrimination claims.

June 8, 2018, Fourth District Court of Appeal, Adrian Camacho v. Target Corporation: Mr. Camacho filed a case against his employer for discrimination, harassment, failure to prevent harassment and discrimination, retaliation, and related other claims. Mr. Camacho also filed a claim for worker’s compensation benefits. The trial court dismissed the discrimination case on grounds language in a compromise and release agreement form used to settle the worker’s compensation action constituted a release of the discrimination claims. On appeal, the Fourth District reviewed the established rule that discrimination claims are not subject to the worker’s compensation system and may be pursued as civil actions. Target contended that language in an addendum to the form releasing “any other claims for reimbursement, benefits, damages, or relief of whatever nature” resulted in Mr. Camacho releasing his discrimination claims. The appellate court disagreed. There was no language in the form or addendum referring to claims outside of the worker’s compensation system. When the form and addendum were considered as a whole, the language upon which Target relied did not satisfy the “clear and non-technical language” requirement for releasing claims beyond worker’s compensation.

Posted by deanroyerlaw in Employment