Labor Employment Law Blog

In Equal Employment Opportunity Commission v. The Boeing Company (August 18, 2009), the Ninth Circuit reminded employers that reductions-in-force do not mean that the company may still not have to defend discrimination and retaliation claims. The Ninth Circuit held that the EEOC was entitled to a trial against Boeing because the EEOC had adequate evidence from which a reasonable jury could conclude that the reasons Boeing advanced to justify its employment actions were pretextual.
 

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.

Recently, we have seen a rise in retaliation claims filed by current and former employees.  Courts continue to grant new rights to such complaining employees.  On May 27, 2008, the U.S. Supreme Court issued two decisions clarifying additional ways for employees to pursue such retaliation claims against employers.

A decade ago, in Reno v. Baird, the California Supreme Court held that individual employees could not be held personally liable for discrimination under the California Fair Employment and Housing Act.  Until this past week, however, the law regarding whether individual employees could be held liable for retaliation was unsettled.  In Jones v. The Lodge at Torrey Pines Partnership, the Supreme Court of California clarified that, as in discrimination cases, only employers and not individual employees can be held liable for retaliation.

The Courts Continue To Expand The Reach Of Retaliation Claims

We continue to see an expansion of retaliation claims filed by current and former employees and the courts are granting new rights to such complaining employees.

On August 11, 2005, the California Supreme Court, in Yanowitz v. L'Oreal USA, Inc., held that an employee's refusal to follow a supervisor's order that the employee reasonably believes to be discriminatory constitutes protected activity in a retaliation claim under the Fair Employment and Housing Act. In that case, Yanowitz alleged that she refused to carry out an order from a male supervisor to terminate the employment of a female associate who, in the male supervisor's opinion, was not sufficiently sexually attractive. After she refused to terminate the female sales associate, Yanowtiz claimed she was subjected to heightened scrutiny and hostile adverse treatment. Consequently, Yanowitz filed a lawsuit against the company asserting unlawful retaliation under the Fair Employment and Housing Act.