Pregnant Women Still Deserve Protection Against Discrimination Despite Recent Holding of Veronese v. Lucasfilm

The case of Veronese v. Lucasfilm, Ltd. (2012) 212 Cal.App.4th 1, is replete with lessons to be learned on all fronts, especially lessons about how to navigate through the process of instructing the jury in an employment discrimination jury trial, and dealing with implicit or unspoken bias, here from a judicial panel. The lawyers representing employees must be careful not to overreach in the instructional arena, and make sure the jury instructions given accurately reflect the law. Everyone should be aware that paternalistic notions (here by an all-male appellate panel) may influence the outcome of a case, whether by jurors, lawyers, or judges.

With all that said – let’s take a look at the Veronese case. The facts are a little hard to follow, as they involve a lot of personal dialogue and soap opera-like scenarios. Ms. Veronese applied for a job with Lucasfilm, but the position had almost nothing to do with the film industry. The title was assistant to the manager of Lucas’ home, and appeared to involve a lot of household management and childcare.

The statement of facts relate a fairly lengthy set of drawn out and intricate conversations and emails throughout a terribly over-analyzed and detailed hiring process, during which Ms. Veronese finds out and announces she is pregnant with twins, the hiring manager discusses every possible feeling she has about children, pregnancy, and both sides – frankly – say and write a lot of things that are capable of multiple interpretations.

Both sides go back and forth about the job and the hiring process, asking for and receiving accommodations, trial jobs, and frankly TMI (“too much information”). In the end, the whole deal falls apart, Lucasfilm hires someone else, and Ms. Veronese sues for pregnancy discrimination.

After quite a bit of discovery, the case goes to trial on multiple claims, and Ms. Veronese is awarded $113,830, and her attorneys $1,157,411 (a relationship between client and attorney compensation that generally makes no lawyer or client happy).

The case is appealed. The Court of Appeals reverses the award and remands the case for retrial, holding that there are multiple instructional errors.

The Court of Appeals opinion reads as if the three (male) judges simply did not like the jury’s determination, and let their own opinions, intentionally or unintentionally, influence the outcome, resulting in a reversal of the jury award. Now, this is not to suggest that the trial court record was pristine, as it was rather messy, but the opinion itself makes some mighty bad law, replete with comments that would make any feminist’s blood boil.

For example, there was a lot of testimony at trial about whether Lucasfilm’s manager was simply showing caring and concern towards a pregnant applicant/ employee carrying twins, or was making employment decisions based upon the fact that Ms. Veronese was pregnant with twins, something the employer clearly could not do under the law. There is no doubt that there was a fact dispute here and that the jury believed the employee’s version of the facts. However, the Court of Appeals, citing instructional errors, reversed on multiple grounds. In its haste to reverse, it made some law it ought not to have set down in a precedential opinion.

For example, because the manager wrapped her “concerns” in a coat of I’m-only-thinking-of-you (and the baby), the employee’s lawyer requested a jury instruction stating, “A potential hazard to a fetus or an unborn child is not a defense to pregnancy discrimination.” While the three-man (sic) panel admitted that the jury instruction accurately reflected the law, it held that the instruction was given in error, based upon a distinction without a difference: the case law supporting such an instruction dealt with a policy, whereas this case dealt with “only one 36-year-old pregnant woman who had already miscarried one twin.” This was the panel’s so-called legal justification for ignoring U.S. Supreme Court law. The panel might have just as well ‘fessed up to the fact that it was simply uncomfortable with the law, and therefore was refusing to follow it.

The Court of Appeals also declared a variety of other jury instructions as erroneous and prejudicial. For example, it declared that it was error to refuse to give the employer’s requested instruction on “business judgment.” A business judgment instruction would have instructed the jury that it couldn’t hold the employer liable for discrimination if the decisions weren’t discriminatory, but were rather based upon the non-discriminatory business judgment of the employer. Although giving this instruction wouldn’t have hurt anyone, failing to give it didn’t hurt anyone either, and thus wasn’t prejudicial. It was just another reason to justify reversal of the judgment.

There were other jury instructions that the Court of Appeals cited as justifying reversal of the verdict. Which brings us to one of the lessons that can be learned from this opinion, whether well reasoned or not. One lesson for employees and their counsel is that convincing a judge to give you the most employee-friendly jury instruction isn’t always the best strategy. It may leave the verdict vulnerable to reversal or appeal. Making sure the jury instructions look like they accurately and neutrally reflect the law may be a wise strategy for protecting a verdict over the long run.

Jody I. LeWitter
February 22, 2013