Labor Employment Law Blog

The recent case of Harman v. City and County of San Francisco, 158 Cal. App. 4^th 407 (2007) serves as a good example of the risks of not only litigating discrimination cases, but also seeing such cases all the way to a final verdict.  In Harman, the jury found in favor of the employee, finding that the City had an official policy of intentionally discriminating against white males.  Although the lower court dismissed the majority of the employee's claims and the jury awarded the employee a total of $30,300 in damages, the lower court awarded the employee over $1 million dollars in attorneys' fees to cover his legal costs.  In upholding this award, the appellate court stated, "The law does not mandate . . . that attorney fees bear a percentage relationship to the ultimate recovery of damages in civil rights cases."  Many employers already know that plaintiffs' counsel in some employment-related cases are driven more by the promise of attorneys' fees if they are successful, than the damages that might be awarded.  This case is a reminder that in evaluating cases, employers should not just focus on the damages that may be awarded to the plaintiff.

In Lynn Noyes v. Kelly Services, the Ninth Circuit Court of Appeals considered whether a former software developer at Kelly Services could maintain a cause of action for reverse religious discrimination against her former employer. This category of claim had historically been very rare, but was addressed in this May 29, 2007 decision.

On February 6, 2007, the Ninth Circuit Court of Appeals issued a ruling in a closely watched gender discrimination case brought by six female employees against Wal-Mart, the nation's largest employer.  The six plaintiffs allege that, despite having equal or better qualifications, they were paid less than male employees for the same work and that they received fewer promotions to store management positions than their male coworkers.

Click here to view a PDF copy of the document.

On August 31, 2006, the Court of Appeals for the Ninth Circuit increased the burden for employers who wish to obtain a release from employees of Age Discrimination in Employment Act ("ADEA") claims. The ADEA provides that employees may not waive rights or claims arising under the ADEA unless a waiver is "knowing and voluntary" and is written "in a manner calculated to be understood" by an average employee. However, the technical, legal requirements established by the ADEA also render drafting an agreement that may be readily understood by employees to be particularly challenging. 

The California Fair Employment and Housing Act ("FEHA") requires employers to engage in an interactive process to determine whether reasonable accommodation can be made to allow employees with known disabilities to perform the essential functions of their jobs. In Charles Gelfo v. Lockheed Martin Corporation, the California Court of Appeal held that an employer must engage in an informal interactive process with, and make reasonable accommodation for, an employee or applicant who is "regarded as" being physically disabled, even though the individual may not actually be physically disabled.

On September 7, 2005, a California Court of Appeal, in Ross v. Ragingwire Telecommunications, Inc., held that a company may refuse to employ an individual because he or she is using marijuana in accordance with the Compassionate Use Act of 1996.

On March 30, 2005, the United States Supreme Court decided the case of Smith v. City of Jackson, Mississippi, expanding the theories of recovery available to plaintiffs in age discrimination cases. The Court held for the first time that the "disparate impact" theory of recovery, announced in Griggs v. Duke Power Co., 401 U.S. 424 (1971) for cases brought under Title VII of the Civil Right Act of 1964, is also available under the Age Discrimination in Employment Act ("ADEA").

In the recently-enacted American Jobs Creation Act of 2004 (P.L.108-357), a new subsection was added to the Internal Revenue Code for the purpose of ensuring that plaintiffs who win awards or settlements in certain civil rights cases and other lawsuits do not pay income tax on the part of the recovery paid to attorneys.