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When you think about it, how could a jury fail to convict a man who sexually assaulted 60 ( yes, that is SIXTY, or sixty, or OMG s-i-x-t-y) women, almost all of whose stories are eerily similar?  That is, he gave them alcohol and drugs, such as Quaaludes, and then sexually assaulted them. Guilty, guilty, guilty.

As we watch the re-trial of the famous Bill Cosby for his sexual assault of Andrea Constand, we have to wonder why he wasn’t convicted the first time (i.e., why did the case result in a mistrial?) and, given the ascent of the #metoo movement, with the accompanying consciousness raising, whether justice will be done in the retrial. The jury hasn’t yet started to deliberate but some lessons can already be learned.

First, of course, the burden of proof is simply higher in a criminal case than in a civil case, and there are good policy reasons for that. We want to be very sure when we put someone behind bars. Second, the jury pretty much never has the entire story. In the first trial, the judge only allowed one other victim to testify, and in the re-trial, 5 victims have testified. In all cases, for reasons both right and wrong, not all evidence is heard by the jury. And lastly, it is unusual for a civil case involving incidents so far into the distant past to proceed, which does provide reasons to sow reasonable doubt, and to question witnesses’ and victims’ memories and motives, in this criminal case.

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There are so many thoughts, legal theories and emotions swirling around and within me, as a 35-year lawyer (here, I mean practicing law for 35 years, not 35 years of age!) watching the #metoo movement unfold.

First, social norms are so well ingrained that we, as a society, often do not question what should be questioned.  The line between appropriate behavior and inappropriate but- we-have-to-put-up-with-it behavior is simply blurred.  I am grateful beyond belief to those brave souls, those who question the way things are, for shinning a floodlight on these deep dark not-so-secret societal norms.

Second, my own experiences are like an onion. The outer skin protects a lot of interior sections of which I am not always so cognizant. When peeled back, the memories are hazy but powerful. My outer skin is: no, no, lucky me, I am fortunate and have not been subject to sexual harassment.  But it isn’t true. I feel this way due to years of denial and a well-honed ability to minimize.  It is my denial mechanism that has made me a successful lawyer and advocate.  But this ability to minimize, ignore and excuse doesn’t help change society, and change is what we need.

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This Ninth Circuit case addressed a typical “good ol’ boy” attitude at work: a male co-worker accused of anything – here rape of the Plaintiff co-worker – is treated with empathy and kindness.  The female co-worker, who made this very serious accusation, is simply not treated as well: no support; no kindness; no concern.

In Fuller v. Idaho Department of Corrections (9th Cir. 2017) 865 F.3d 154, the Ninth Circuit stressed the importance of how this imbalance impacted the employee/rape victim and how a reasonable jury could conclude that the employer’s conduct “effectively condoned the rapist” and thus, created a hostile work environment for the victim.  In doing so, the Ninth Circuit overturned the lower court’s summary judgment in favor of the employer.

When the employer learned that a male employee was being investigated by the sheriff for the rape of an employee, it put the co-worker on a paid administrative leave, and did not warn any of its employees. (Yes, we understand the difficult balancing test between safety and privacy).  The employer, Department of Corrections, not only paid the co-worker while on leave but gratuitously noted that it “looked forward to…[his]…prompt return to work.”  (Yes, this case was before the #MeToo movement.)  Ms. Fuller, who had a relationship with the co-worker, disclosed the relationship to her employer.  The employer did nothing to warn or protect her, and she was subsequently raped by this same co-worker.

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Last month, we discussed the new changes to the Equal Pay Act that will prohibit employers from relying on an applicant’s prior salary to determine how much to pay the applicant.

As happens at this time of the year, the governor signs a number of pieces of legislation, many of which impact employees. Today we are looking at a few more important pieces of legislation protecting employees with criminal histories, women, immigrants, and families.

First, Governor Brown signed Ban the Box. This legislation broadens the current legislation.  Now, it will be an unlawful employment practice to ask a potential employee about his or her criminal convictions or to consider any convictions until after a conditional offer of employment is made. After making such an offer, the law sets forth limits on how an employer may consider facts surrounding a conviction, including an individualized assessment and notice. The law applies to employer’s with over five employees.  See, AB1008.

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Wage disparities between men and women continue to be a significant problem even today. In 2016, the Bureau of Labor Statistics found that female full-time wage and salary workers only made 88% of what their male counterparts made. (https://www.bls.gov/regions/west/news-release/womensearnings_california.htm)  So, for every $100 a man earns, his female counterpart only earns $88. Recently, two tech giants have been in the news because female employees filed lawsuits for gender-pay discrimination.

 In recent years there have been several legislative changes strengthening the equal pay law in California. The California Equal Pay Act prohibits an employer for paying a male employee more than a female employee “for substantially similar work.” Cal. Labor Code § 1197.5. The California Equal Pay Act applies to all California employers, regardless of the size of the employer.  The California Equal Pay Act also prohibits employers from discriminating or retaliating against an employee for invoking rights provided by the law or helping another person invoke her rights under the law.

 On January 1, 2017, the Fair Pay Act was expanded to address compensation disparities between members of one race or ethnicity and those of another race or ethnicity. For example, women of color are often paid less than white women, and the changes to the law allow women of color to make a claim where this occurs. See Cal. Labor Code § 1197.5(b)

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Recently the U.S. Justice Department submitted a brief in Zarda v. Altitude Express arguing that Title VII of the Civil Rights Act does not protect workers from discrimination based on their sexual orientation. Donald Zarda was a skydiving instructor who sued his employer for discriminating against him based on his sexual orientation in violation of Title VII.  Title VII, a federal law that prohibits discrimination, specifically prohibits employment discrimination based on “sex.” The U.S. Justice Department’s position is that discrimination based on “sex” does not include discrimination based on sexual orientation. This position is a departure from the position of the U.S. Equal Employment Opportunity Commission which has argued for years that sexual orientation discrimination is sex discrimination.

Courts have differed on whether Title VII protects workers on the basis or their sexual orientation or not. This has led to a split of authority in several federal districts. For example, in 2000, the Seventh Circuit decided that Title VII did not protect workers on the basis of their sexual orientation, but earlier this year, the Seventh Circuit sitting en banc came to the opposite conclusion: that Title VII does in fact protect workers based on their sexual orientation. Compare Hamner v. St. Vincent Hospital & Health Center, Inc. (7th Cir. 2000) 224 F.3d 701 and Hively v. Ivy Tech Community College of Indiana (April 4, 2017, en banc.)

While federal courts continue to argue the meaning of “sex” under Title VII, California employees can rest assured that they are protected from discrimination based on their sexual orientation. The California Fair Employment and Housing Act (“FEHA”) explicitly prohibits discrimination against any person because of his or her sexual orientation. This means that employees in California are protected from discrimination based on their actual and/or perceived sexual orientation. Cal. Gov. Code §§ 12926(o), (s); 12940(a)-(d). Like Title VII, FEHA also prohibits discrimination based on “sex” but FEHA expressly defines “sex” to include “gender” which is defined as a person’s “gender identity” and “gender expression.” Cal. Gov. Code § 12926(r)(2).

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Seldom do employee-side lawyers cheer a ruling for the employer, but the Ninth Circuit decision holding that homophobic behavior in the workplace is not justified by an employee’s right to religious freedom was correctly decided and is good for employees.

In Flanagan v. City of Richmond (Ninth Circuit June 19, 2017) No. 15-17258, Ms. Flanagan claimed she was fired for her religious disapproval of homosexuality.  The record reflected that she manifested this intolerance by, for example, forbidding a lesbian intern from entering the workplace, leaving her stranded in the waiting room and declaring that she wouldn’t be going to heaven.

The court observed that although Flanagan’s religious speech may have touched on a matter of public concern her free speech, when balanced against the “… interest in maintaining a discrimination – and harassment – free environment” must fail.

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In a good day for fair jury selection in the State of California, the California Supreme Court reversed a conviction in a criminal case where a prosecutor used 10 out of 16 peremptory challenges to bump Hispanics off of the jury pool.  People v. Gutierrez (June 1, 2017)  17 C.D.O.S. 5040.

This case is equally important to employment cases, where we often find that defense attorneys challenge perfectly fair jurors based on their race/national origin/gender/age and other identifying information that is similar to that of the plaintiff, and thereby deny the plaintiff in employment cases a jury of their peers.

The California Supreme Court sent a message that under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson) a trial court must seriously scrutinize the rationale and motivation presented by any side using its jury challenges to challenge a legally protected and cognizable group.  Here the court noted that 10 out of 16 challenges were used against Hispanics and 10 out of 12 Hispanics who took a seat in the jury box were challenged by the prosecutor.  The Supreme Court warned that, “excluding by peremptory challenge even a single juror on the basis of race or ethnicity is an error of Constitutional magnate”.  The Supreme Court made clear to the lower courts that it is their duty to make sure the parties do not use their peremptory challenges in a discriminatory manner, and that the court must make a “sincere and reasoned attempt to evaluate” the explanations proffered by the party bumping the jurors.

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For 32 years, Mr. Santillan worked for USA Waste of California, Inc. becoming perhaps the world’s most beloved garbage truck driver. The customers whose homes he serviced came out in droves to commend his work and he worked for 30 years receiving hardly any discipline. However, that changed when Mr. Santillan was assigned a new supervisor. After the new supervisor took over, suddenly, Mr. Santillan couldn’t do anything right and he was disciplined six times in a year and half. Nearly three years after the new supervisor took over, Mr. Santillan was fired. His employer claimed that their reason for firing him was because he had too many accidents in a year – which Mr. Santillan disputed. Then, USA Waste replaced Mr. Santillan with a driver who had much less experience and was thirteen years younger than Mr. Santillan. Mr. Santillan’s customers were outraged and came out in droves to demand that Mr. Santillan be reinstated. One family even described that their son dressed up as Mr. Santillan for Halloween because he considered Mr. Santillan “a hero.”

Mr. Santillan filed a grievance which ultimately settled. The terms of the settlement provided that Mr. Santillan would withdraw his grievance and in exchange, he would be reinstated provided that she could pass a drug test, a physical exam, a criminal background check and “e-Verify.” E-Verify is a controversial voluntary system under federal law used to check the work authorization status of employees through federal records. Mr. Santillan passed the drug test, the physical exam and the criminal background checks. He was told to report to work with documentation showing his right to work in the United States. Mr. Santillan returned to work with his driver’s license and social security card. Nonetheless, USA Waste insisted it needed a work authorization number and the expiration date. Mr. Santillan provided his identification number, but according to his employer, could not provide the expiration date. USA Waste terminated Mr. Santillan for a second time.

Mr. Santillan filed a lawsuit based on several claims including age discrimination and wrongful termination in violation of public policy. The trial court dismissed his case holding that Mr. Santillan could not state a prima facie case for discrimination and dismissed his wrongful termination claim holding that Mr. Santillan’s failure to provide the work authorization information that USA Waste demanded within three days was a legitimate non-retaliatory reason for the termination. Mr. Santillan appealed to the Ninth Circuit.

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The Ninth Circuit Court of Appeals recently published a decision, providing guidance to courts on when hugs and other forms of unwanted touching cross the line and become sexual harassment. Victoria Zetwick began working for Yolo County as a correctional officer in 1988. In 1999, Edward Prieto was elected as the county sheriff and became Ms. Zetwick’s supervisor. Ms. Zetwick alleged that between 1999 and 2002, Mr. Prieto subjected her to over a hundred unwelcome hugs. On one occasion, Ms. Zetwick says that Mr. Prieto, apparently in an effort to congratulate her on her recent marriage, kissed her partially on the lips. She complained about the incident but her supervisors did not forward her complaints for investigation. Ms. Zewick claimed that in 2010, she was working with another female employee and Mr. Prieto reached out to hug her. He then stopped himself and said that people had complained so he would not hug her. But then he proceeded to hug her and the other female officer anyway.

Ms. Zetwick claimed that Mr. Prieto didn’t reserve his hugs just for her. She claimed that over the years she saw Mr. Prieto hug and kiss dozens of female employees but never saw him hug male employees – instead, he would shake hands with male employees. On another occasion, Ms. Zetwick claimed that Mr. Prieto repeatedly asked another female employee how much she weighed until she answered and looked at the employee in a sexually suggestive manner. Mr. Prieto claimed that he did in fact hug male employees and that all of his hugs were just friendly hugs. The County also claimed that Ms. Zetwick hugged other male co-workers and joked about Mr. Prieto’s hugs.

Several courts have determined that hugs and kisses on the cheek do not always create a sexually hostile work environment. However, in determining whether such conduct does crease a hostile work environment courts must look at who engaged in the conduct, the conduct itself, the number of times the conduct occurs, and the period of time over which the conduct occurs. Importantly, the conduct must be severe or pervasive- it does not have to be both.

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