Employment Discrimination

Aiding and Abetting Employment Discrimination in California

Published on: October 27, 2021 | The Nourmand Law Firm, APC

The Court of Appeals of California recently issued an opinion addressing several employment claims, including whether a union may be responsible for aiding and abetting discrimination. The plaintiff in this matter filed a wrongful termination case against his employer, a janitorial services company, and the union that represents the employer. The relevant issue on appeal is whether the trial court erred in denying the plaintiff’s leave to amend to claim that the Union aided and abetted the employer’s violation.

In 2012, the employer hired the plaintiff to work as an “additional services” employee to provide janitorial services at a location. About a year later, the employer-provided written confirmation that the plaintiff was a “permanent employee.” In 2014, the plaintiff took leave under the California Family Rights Act (CFRA) to care for his terminally ill wife. A day after returning to work, his supervisor informed him that he was terminated because another employee had filled the position. Shortly after his termination, the plaintiff filed a discrimination and retaliation charge against his employer and the Union.

In response, the employer argued that they unintentionally and erroneously issued the plaintiff a “permanent employee” letter. Further, they explained that another employee was next in line to obtain the position according to their seniority scheme. The Union argued that their actions were not motivated by discrimination but solely their responsibility to enforce their seniority hiring protocols.

The Impact of the Anti-SLAPP Statute in California Employment Discrimination Lawsuits

Published on: October 15, 2021 | The Nourmand Law Firm, APC

California’s anti-SLAPP statute refers to the Strategic Lawsuits Against Public Participation. Lawmakers designed the statute to protect those who wish to speak out about public policy issues against more powerful corporate entities. In California, the term primarily refers to lawsuits stemming from discouraging speech about significant issues or public participation in governmental proceedings.

While the statute provides many benefits, it also has significant implications for California employees wishing to pursue employment discrimination or retaliation against their employers. Anti-SLAPP statutes permit defendant employers to present a motion to strike causes of action that stems from “any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution; in connection with a public issue.”

Following a California Supreme Court case, the Court held that the anti-SLAPP statutes do not include an exception for retaliation or discrimination claims. As such, a plaintiff’s allegations against an employer’s motives will not protect the claim from preliminary screening for merit.

A Plaintiff’s Evidentiary Burdens in a California Employment Discrimination Case

Published on: September 17, 2021 | The Nourmand Law Firm, APC

Recently the Court of Appeals issued a decision in a California employment discrimination case involving several claims, including pregnancy-related and sex discrimination. The plaintiff asserts that her employer, a dental group, terminated her position because she attempted to become pregnant. In response, the defendant argued that the decision did not stem from discrimination. Instead, the defendant contended that the company was undergoing a reorganization; the plaintiff lost her job because her performance scores put her at the bottom of the metric they used to rate employee performance.

Under California law, courts use the federal burden-shifting test for evaluating wrongful discharge lawsuits. In these cases, plaintiffs must show that the employer’s actions were more likely than not based on a prohibited discriminatory criterion. If the plaintiff meets this burden, a presumption of discrimination arises, and the employer must establish a legitimate, nondiscriminatory reason for their action. If the employer meets this burden, the burden shifts back onto the employee to establish “substantial evidence” that the defendant’s nondiscriminatory reason was pre-textual or that the employer acted with animus.

Under this framework, an employee’s evidence is subject to scrutiny, and their subjective belief does not create a genuine issue of material fact. Instead, the proffered evidence must establish a causal link between the employer’s motivation and termination. Moreover, circumstantial evidence of discrimination must be “substantial” and specific.”

Statute of Limitations Starts in Failure-to-Promote Case When Employee Knows of Refusal, Supreme Court of California Holds

Published on: August 15, 2021 | The Nourmand Law Firm, APC

The Supreme Court of California recently issued a decision in a California employment case alleging the unlawful refusal to promote, holding that the statute of limitations begins to run when the employee knows or should have known about the employer’s unlawful refusal to promote. In that case, the employee was a customer service representative and dated the executive vice-president of the company. The employee alleged that she refused to have sex with the executive vice-president and ended the relationship. She claims that her employer later denied her several promotions despite being the most qualified candidate, alleging the decision was made because she refused to have sex with the vice-president. The employee filed a claim under the harassment provision of the Fair Employment and Housing Act (FEHA).

The employer claimed that the employee failed to file the claim within one year of the alleged unlawful practice. The employee claimed in part that another woman was promoted in March 2017 and the promotion went into effect on May 1, 2017. The plaintiff filed her administrative complaint in April 2018. The employee argued that she was required to file within one year of May 1, 2017, when the promotion went into effect. On the other hand, the employer argued the failure to promote took place in March 2017.

Statute of Limitations Under FEHA

Court Addresses Jury Instruction in California Hostile Workplace Lawsuit

Published on: February 17, 2021 | The Nourmand Law Firm, APC

A state appellate court recently issued a decision in a plaintiff’s appeal regarding a trial court’s response to a jury question in a California hostile workplace lawsuit. The plaintiff alleged that she was sexually harassed by the principal of a school where she taught. She claimed that starting around September 2013 the principal sexually harassed her, resulting in a hostile work environment. The complaint also alleged that the school district failed to take the steps necessary to prevent harassment and retaliation.

In this case, the court instructed the jury that the plaintiff’s claim for failure to prevent a hostile workplace required that she establish that the principal and school district failed to take all reasonable steps to prevent retaliation, and their failure was a substantial factor in her harm. During the trial, the jury asked the trial judge whether these questions referred to allegations before September 2013. The court instructed the jury to only consider the period after September 2013, reasoning that there was no evidence to substantiate any harassment before that time. On appeal, the plaintiff argued that the instruction excluded relevant evidence, ultimately denying her rights to a constitutional jury trial.

The California Fair Employment & Housing Act (FEHA), protects employees from discrimination and harassment in employment based on their protected class. The law prevents discrimination based on a person’s race, color, ancestry, national origin, religion, sex, age, genetic information, marital status, sexual orientation, gender identity, AIDS/HIV, medical condition, political affiliations, military status, and status as a victim of domestic violence or assault. In these cases, the plaintiff/employee bears the ultimate burden of proof.

California Court Determines Employee’s Age Discrimination Lawsuit Should Proceed, Despite Lower Court’s Ruling

Published on: January 13, 2021 | The Nourmand Law Firm, APC

Earlier this month, a state appellate court issued an opinion in a California age discrimination lawsuit. The lower court dismissed the plaintiff’s claim, finding that the statute of limitations did not toll, and the plaintiff’s case was filed too late. However, on appeal, the court reversed the lower court’s decision, allowing the plaintiff’s case to proceed.

The Facts of the Case

According to the court’s opinion, the plaintiff was employed as a sheet metal worker with the defendant employer. During his tenure there, the plaintiff received “exemplary” evaluations. However, on December 3, 2013, the employer fired the plaintiff.

After the plaintiff filed a grievance, it was discovered that the employees hired to replace him were all under 30 years of age. The company responded by agreeing to rehire the plaintiff, but refused to pay him back wages.

Fired Uber driver files discrimination lawsuit

Published on: November 2, 2020 | The Nourmand Law Firm, APC

A lawsuit filed by a former Uber driver from San Diego claims the ride-sharing company’s system to rate its drivers is racially biased.

Thomas Liu was fired in October 2015 when his star rating fell below 4.6. In its app, Uber asks passengers to rate drivers on a scale of one to five.

Lawsuit claims race plays a role in star ratings

How are LGBTQ workers protected in California?

Published on: October 23, 2020 | The Nourmand Law Firm, APC

The California Fair Employment and Housing Act (FEHA) and Title VII of the Civil Rights Act prohibit employers from discriminating against anyone because of their sexual orientation, gender identity and gender expression.

While limited exceptions exist – for religious institutions and companies with fewer than five employees – the vast majority of workers and job applicants in California are protected. Those exemptions do not allow employers to harass workers for any reason.

What constitutes LGBTQ harassment?

California extends deadline to file discrimination complaints

Published on: October 16, 2020 | The Nourmand Law Firm, APC

Workers now have one year to file a discrimination or retaliation lawsuit against their employer with the California Division of Labor Standards Enforcement (DLSE) after Gov. Gavin Newsom signed Assembly Bill 1947 into law on Sept. 30.

Before the measure became law, employees had six months after a violation occurred to file a complaint for cases involving discrimination over age, race, sexual orientation, disability, sex and gender, pregnancy, religion, national origin and family responsibilities.

Recovery for retaliation claims can include attorney fees

How are caregivers protected from discrimination in California?

Published on: October 8, 2020 | The Nourmand Law Firm, APC

When employers fail to take job applicants’ or employees’ caregiving obligations into account, they may be guilty of family responsibilities discrimination (FRD).

In California, companies cannot consider an employee’s real or perceived caregiving role to deny raises, promotions, reduce their pay or take other adverse actions, such as harassment and discrimination.

Caregivers face discrimination in many forms