California Supreme Court Holds That Proof That Employer Would Have Made Same Employment Decision Absent Discrimination Precludes Award Of Damages, Backpay, Or Reinstatement
On February 7, 2013, the California Supreme Court held that where a plaintiff proves that unlawful discrimination in violation of the Fair Employment and Housing Act ("FEHA") was a substantial factor motivating her termination, but the employer proves that it would have made the same employment decision absent such discrimination, the plaintiff may obtain only declaratory or injunctive relief and attorneys’ fees and costs, but may not recover damages, backpay, or reinstatement.
Continue ReadingA Workers' Compensation Rating Of 100% Disabled Does Not Relieve An Employer Of Its Obligations Under The ADA And FEHA
Cuiellette v. City of Los Angeles (April 22, 2011) cautions employers that when an employee has been rated as 100% disabled for workers’ compensation purposes, the employer is not relieved of its duties under the Americans with Disabilities Act (“ADA”) and Fair Employment and Housing Act (“FEHA”). Practically speaking, a workers’ compensation rating, even as high as 100% disabled, does not mean that the employee cannot be a qualified individual entitled to an individualized assessment of his or her disability through an interactive process and a reasonable accommodation.
Continue ReadingCourt Says Okay to Terminate Bipolar Employee Who Threatened Coworkers
Before filing suit under the California Fair Employment and Housing Act ("FEHA"), an employee must exhaust her administrative remedies with the Department of Fair Employment and Housing ("DFEH"). In the recently decided case of Wills v. Superior Court, the court gave little leeway to an employee, finding that she failed to exhaust her administrative remedies because her DFEH complaint only alleged discrimination based on a denial of family/medical leave, while her lawsuit raised different allegations of disability discrimination, retaliation, harassment, and failure to accommodate.
Continue ReadingA Company's Shifting Reasons For An Employment Decision Can Hurt The Company's Defense
A San Diego federal district court recently provided guidance on what constitutes an "adverse employment action" and how an employer's shifting reasons for its actions may affect a discrimination case. In Coyne v. County of San Diego, the plaintiff, an employee, sued her employer for discrimination and retaliation in violation of Title VII and the California Fair Employment and Housing Act. The plaintiff claimed that she was transferred to a lateral position in a different division because of her gender and because she actively supported the gender discrimination claims of other employees. The County filed a motion for summary judgment. The parties conceded that the plaintiff had engaged in protected activity. The issues were whether the transfer constituted a materially adverse employment action and whether the transfer was justified by legitimate non-discriminatory reasons.
Continue ReadingEmployers May Only Have to Pay Proportional Fees If They Lose
In Chavez v. City of Los Angeles, the California Supreme Court held that a court has the discretion to award a plaintiff seeking attorneys’ fees for the underlying litigation only a fair portion of the amount sought.
Continue ReadingH1N1 Virus and the Workplace: Will this Year's Flu Cause a Headache for Employers Too?
Flu season is upon us. With the recent outbreak of the H1N1 Virus ("Swine Flu") as well as the ever-present seasonal flu, employers must face increased absenteeism by their employees. Much like the regular flu, H1N1 causes fever, sore throat, nausea and fatigue. However, this particular strain of illness is predicted to be particularly dangerous not only for those with preexisting medical conditions such as asthma or diabetes, but also for those under the age of 25, as opposed to the elderly who are normally at highest risk of severe injury or death from the seasonal flu. This means that employers will likely see more of their younger employees affected by the H1N1 virus than from the regular flu.
Continue ReadingUnsubstantiated Concerns Ruled Pregnancy Discrimination - A Cautionary Tale
The California Court of Appeal recently affirmed a decision by the Fair Employment and Housing Commission ("FEHC") finding that an employer discriminated against a pregnant employee in violation of the Fair Employment and Housing Act. In SASCO Electric v. FEHC, an extremely experienced female who served as a second captain of a yacht was terminated shortly after she informed her employer that she was pregnant. Her employer was admittedly disappointed by the news because he believed that "mothers do not want to work in the boating business." Moreover, he believed the employee's plan to work as long as possible during her pregnancy was "cavalier." Further, he had liability concerns (e.g., her exposure to chemicals and possibly falling on the boat which could lead to a miscarriage). These fears lead the employer to terminate her employment under the guise of a layoff.
Continue ReadingCourt of Appeal: Employee Can Sue For Disability Bias Despite Absence Of Medical Evidence And Absence Of Any Explicit Request For An Accommodation
A California Court of Appeal has ruled that an employee who used a company-provided scooter to move around a factory can sue for disability bias after the scooter broke and was not replaced by the employer. This despite the fact that there was no medical evidence of disability, the employee worked for six months without using a scooter before deciding to retire, and the employee never told the Company he could not do the job without the scooter.
Continue ReadingSecond Circuit Court Of Appeals Rules That An Employer Must Notify Its Insurer Of A Potential Claim Upon Receiving A Demand Letter From Counsel
The Second Circuit's ruling in Westrec Marina Management v. Arrowood Indemnity Co. is a warning to employers to report potential claims to their insurance carrier as soon as possible or face denial of coverage. In Westrec, an employee filed a charge of discrimination against Westrec with the California Department of Fair Employment and Housing (DFEH) and requested an immediate right to sue letter. Subsequently, her attorney sent a demand letter to Westrec asserting claims and seeking possible early settlement prior to filing a lawsuit. At the time of the letter, Westrec failed to inform its insurer, Arrowood, of the claim. The employee later filed a civil action, and when Westrec tendered the claim, Arrowood denied coverage.
Continue ReadingCalifornia Supreme Court Confirms That Plaintiff Claiming Disability Discrimination Under FEHA Must Show Qualification for Position
The California Supreme Court today issued a 4-3 decision in the case of Green v. State of California, resolving a split in authority regarding the burden of proof in disability discrimination cases under the Fair Employment and Housing Act (the "FEHA"). It is now settled that a plaintiff alleging disability discrimination under the FEHA must prove that s/he was qualified to perform the essential functions of the job, with or without reasonable accommodation. The defendant does not have to affirmatively prove that the plaintiff was unqualified in order to avoid liability.
Continue ReadingFederal Litigators Face New Burdens in E-Data Discovery
Disability Is In The Eye of the Beholder: Court Of Appeal Mandates Employer Accommodation Of Employees "Regarded As" Disabled
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