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Recent Developments in Discrimination Law
Failure to Reinstate is a separate claim in Disability Discrimination In Josephs v. Pacific Bell The Ninth District joined the First, Third Fourth, Tenth and Eleventh Circuits in expressly recognizing failure to reinstate as a separately actionable claim in a case involving a service technician discharged for withholding information about his criminal and mental health history.
No Tameny Tort Claim based solely on worker’s compensation retaliation that violates Labor Code Section 132a. In Bravo v. Neiman Marcus Group, Inc. the court threw out a case based solely on retaliation for filing workers compensation. Labor Code Section 132 prohibits an employer from penalizing an employee who files for workers’ compensation benefits. In this case, a Neiman Marcus employee was terminated for exceeding a seven-month leave limit set by her employer. The employee appealed after her case was dismissed, and the Court ruled for the employer, that the case was properly dismissed for failure to state a cause of action. Her cause of action for breach of implied covenant was deemed legally deficient because her complaint failed to allege any contractual provision that limited her employer’s ability to fire her. The covenant of good faith and fair dealing only serves to enforce an agreement. The court also affirmed that she must accept the remedies limitations placed on the specific code section by the Legislature.
Court erred in finding no triable issue on pregnancy discrimination claim with Reduction in Force In Kelly v. Stamps.com, Inc. it was held that in order to avoid summary judgment plaintiff had to tender evidence of a pregnancy-discriminatory motive when an she was fired as part of a reduction in force, not just evidence of a number of circumstances that cast doubt on the genuineness of defendant’s explanation for her discharge.
No triable issue of fact was raised on FEHA harassment claim by TV writer assistant when sexually vulgar comments and conduct occurred in and around the writer’s room In Lyle v. Warner Bros. TV Prods. Vulgar language not directed at the Plaintiff can be the basis of a sexual harassment claim. The Court did not directly address the issue of First Amendment protection of free speech, although a judge’s opinion offered that if the challenged speech arose in the context of the creative/editorial process, and was not directed at or about the plaintiff, it would be protected.
Male mechanic accused of homosexual acts by co-workers has harassment case reinstated In Singleton v. US Gypsum Company, Inc.Summary judgment was reversed in a case where a male mechanic was accused by co-workers of homosexual acts. The trial court rules that the hostility and abuse he suffered were not related to his gender or sexual orientation, so he was not harassed “because of sex” under the law. The Appeals Court ruled that “because of sex” includes disparate treatment between genders. Accordingly, the harassment was “because of sex” because it dealt with Plaintiff’s identity as a heterosexual male and used it as a tool of harassment.
Employee/independent contractor issue is one for the judge, but can be reviewed de novo on appeal In Buel v. Chowder House, Inc. it was determined that where the facts are undisputed, the determination of whether someone is an employee or an independent contractor is one for the judge. If decided by the judge, the appellate court can then review the decision de novo. This case involved an exotic dancer who sued her employer for retaliatory discharge after the employer sent her home after learning she had sued a former employer for sexual harassment.
Makeup requirement upheld but questioned. In Jespersen v. Harrah’s Operating Company, Inc. the Ninth District affirmed a lower court’s motion for summary judgment in a case based on unequal burden or sex stereotyping. Jesperson, a gay female bartender who refused her employer’s new rules requiring make-up for female employees, sought to have the Court take judicial notice of the of the cost and time differentials in grooming requirements for male and female employees. However, one dissenting judge said the requirement that women wear make-up was based on a gender stereotype. A second dissent said it was clearly true that both expense and time were involved in make-up application.
Employees must prove they can perform job in disability discrimination case. In Green v. State of California the California Supreme Court held under the Fair Employment and Housing Act, an employee is required to prove they are qualified individuals with a disability, i.e. they can perform the essential job functions.
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