Articles Posted in Discrimination

Recently, it has been reported that campaign staffers were encouraged to “dress like women” while on duty. So what can an employer require of an employee with respect to his or her appearance?

Employers are permitted to set grooming standards for their employees and those standards may differ for male and female employees. Over ten years ago, the Ninth Circuit Court of Appeals held that: “Grooming standards that appropriately differentiate between the genders are not facially discriminatory.” Jespersen v. Harrah’s Operating Co., Inc. (9th Cir. 2006) 444 F.3d 1104. In that case, Harrah’s casino had a “personal best” grooming policy that required all of its bartenders to wear the same uniform but had differing policies for men and women with respect to their hair, hands and face. Men were not permitted to wear make-up and were required to have short hair and women were required to wear eye and face make up. A female employee objected to the requirement that she wear make-up and brought a claim under Title VII for sex stereotyping. In a controversial opinion, the Court determined that the differences in the grooming policy for men and women did not give rise to a sex stereotyping claim.

However, Courts have found violations of Title VII where there is an “undue burden” placed on female employees that is not placed on male employees. In Frank v. United Airlines (9th Cir. 2000) 216 F.3d 845, female flight attendants were required to stay under a certain weight in order to keep their jobs. Many of the female flight attendants went on extreme diets to try to make the cut but were unsuccessful in losing enough weight. As a result, they were disciplined and/or terminated. The Court held that United’s policy had a disparate impact on women and was facially discriminatory because it applied less favorably to women than to men.

In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ____ (2015), the United States Supreme Court delivered the straight-forward rule that employers “may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

In this case, Abercrombie refused to hire a young Muslim woman named Samantha Elauf to work in one of its retail clothing stores because Ms. Elauf wore a headscarf. Abercrombie suspected that Ms. Elauf wore the headscarf in observance of her Muslim faith and simply did not want to accommodate the headscarf, claiming that it would violate the company’s “look policy” (which forbade employees from wearing “caps”). When the EEOC sued Abercrombie on behalf of Ms. Elauf for failing to make a reasonable accommodation for her religion, the company defended its actions by arguing that it did not “actually know” that the headscarf was a religious practice – it merely suspected that it was a religious practice. In other words, Abercrombie made the absurd argument that even though it actually believed the headscarf was a religious practice and the headscarf was indeed a religious practice, the company should nevertheless be allowed to discriminate against Ms. Elauf because Ms. Elauf did not specifically tell the company that the headscarf was a religious practice.

Luckily, the U.S. Supreme Court did not buy Abercrombie’s argument. The Court’s decision makes it clear that employers may not make employment decisions that are “motivated” by someone’s actual religious beliefs or practices, nor can it refuse to make reasonable accommodations for such religious practices, by simply claiming that the employee (or job applicant) never explicitly confirmed the company’s suspicions regarding their religious beliefs or practices.

Proving discrimination cases by the standard of a “substantial motivating factor” is now clearly the law of the land – at least in the land of California. Let’s look at why this is so, and what it means.

First, in May 2013, the California Supreme Court declared that the standard of “substantial motivating factor” would replace the previously accepted “a motivating factor” in mixed motive cases under California law. Harris v. City of Santa Monica, 56 Cal.4th 203 (2013). (Mixed motive cases are cases where the employee proves there was discrimination, but the employer proves it would have made the same decision even without this discriminatory animus).

Although the language in Harris was broadly stated, it wasn’t one hundred percent clear whether this standard applied to all discrimination cases under California law, or just mixed motive cases. Along comes Alamo v. Practice Management Information Corporation (2013) 219 Cal.4th 466, holding that the Harris decision applies to almost all employment discrimination cases, thus hammering a nail in the coffin of “a motivating factor” standard under California law. In other words, in an employment discrimination case, although discrimination need not be the sole reason for the wrongful act – it must be a “substantial motivating factor”.

California has good law for employees regarding the admission of evidence that the employer discriminated against other employees, commonly referred to as “me too” evidence. Case law is clear that an employee can submit evidence that the decision maker discriminated against another employee on the same basis for which the employee claims discrimination. See Pantoja v. Anton (2011) 198 Cal.App.4th 87 (employee claiming gender discrimination can submit evidence that decision maker harassed and made sexist comments towards other female employees, Johnson v. United Cerebral Palsy (2009) 173 Cal.App.4th 740 (employee claiming pregnancy discrimination can submit evidence of discrimination against other employees).

The reason this “me too” evidence is admissible is because it demonstrates the intent or motive of the decision maker or wrongdoer. It may also cast doubt upon the employer’s stated reason for the termination or other employment action.

Along comes Hatai v. Department of Transportation (March 3, 2013) ___Cal.4th_____, which casts a slightly different variation on the same theme. It also cautions employees and their lawyers to be exceedingly careful on how they plead a claim of discrimination, if they want to submit “me too” evidence.

For years now in California, juries have been instructed that a plaintiff in an employment discrimination case under California law must prove that discrimination was “a motivating reason” or “a motivating factor” in the wrongful employment decision. See, for example, Mixon v. Fair Employment & Housing Commission (1987) 192 Cal.App.3d 1306. This has been essential black letter law in California’s fight against discrimination, and was incorporated into standard jury instructions given in most cases throughout California. See, for example, Judicial Council of California, Civil Jury Instructions, No. 2500.

Although federal law for a while has gone through several iterations of a judicially carve out for employers (a “free day for discrimination” type of defense) called a mixed motive defense, our California state law has not. At times federal law gave employers a free ride where an employer discriminated, but could prove that it would have taken the same action anyhow. Price Waterhouse v. Hopkins (1989) 490 U.S. 288. That law was amended by statute, splitting the baby, so that there is a cause of action in this situation but damages are limited to injunctive relief and attorneys fees, which is not much solace to the employee who faced this discrimination. 42 U.S.C. Section 2000e-5(g)(2)(B).

The California Supreme Court just made a mixed up jumble of this mixed motive law in Harris v City of Santa Monica (2013) 13 C.D.O.S. 1516. In a somewhat tortured analysis, it slopped and slid through the law, without a lot of clarity as to what exactly are the changes it intended to make. Its holding was and should be limited to a mixed motive case – i.e. a case where the employer can prove both illegitimate (discriminatory) and legitimate reasons motivated the decision. In that case it held that a plaintiff must prove that discrimination “was a substantial motivating factor” in the decision, the employer must then prove that it would have made the same decision in any event, and if so, the plaintiff is entitled to only injunctive relief and attorney’s fees and costs, as with federal law.

Generally speaking, exhaustion of administrative remedies is an unnecessary hurdle for an employee to jump over on his or her way to court when filing a discrimination, harassment or retaliation claim. Rickards v. UPS (June 19, 2012), ___Cal.App.4th ___ is just another case demonstrating this same point.

Mr. Rickards had a claim for discrimination against his employer, UPS. The first hurdle in an employment case in the State of California is generally to file a charge of discrimination with the California Department of Fair Employment & Housing (“DFEH”)(depending on the circumstances, an employee may instead file with the Equal Employment Opportunity Commission, and ask that the claim be cross filed with the DFEH). For an employee who has a lawyer and intends to sue, there is generally no productive reason to file such a charge, except that failure to do so may be a fatal flaw in the subsequent lawsuit.

The Department of Fair Employment & Housing set up an online process by which a lawyer can file a charge of discrimination online for an employee. According to the DFEH, this process is set up for employees who have lawyers. As part of the filing, the employee (or lawyer!!) fills out an online form and moves from screen to screen including a screen that acknowledges that the signature is “…under Penalty of Perjury”. Previous case law had already established that an attorney may verify a charge of discrimination with the DFEH on behalf of the client. Blum v. Superior Court (2006) 141 Cal.App.4th 418.

Hoffman Plastic Compounds, Inc. v NLRB, 535 U.S. 137 (2002) created some bad law when it held that the NLRB cannot award a backpay remedy to an employee who was not legally authorized to work in the United States. Since then employers have had a field day in cases where they “suspect” that an employee, seeking a remedy under the NLRB, federal or state anti-discrimination or civil rights acts, is not legally authorized to work. Employers have gone to town trying to uncover evidence that employees are not legally authorized to work, in the hope that they will, therefore, not have to pay up for their illegal actions.

Flaum Appetizing Corporation, 357 NLRB No. 162 (Dec. 30, 2011) has put some procedural brakes on this railroad by holding that an employer who claims that it need not pay backpay because an employee is not authorized to work in the U.S. cannot just make such a claim up out of whole cloth. The employer must set forth with specificity the basis for this defense. The opinion observed that, to hold otherwise, would permit a “fishing expedition”, relying on its decision in Murcel Manufacturing Corp., 231 NLRB 632 (1977). The Board noted that allowing an employer to simply make a claim without any foundation makes no sense in light of the fact that it was the employer’s obligation to begin with to verify the employability of the employee when hiring.

Flaum gives just a little love to undocumented employees, as well as to documented employees subject to stereotypes that they are not authorized to work because of their national origin.

Nothing is more important than filing a lawsuit within the applicable time limits. One never knows if the court reviewing the case will be sympathetic to an argument that a claim wasn’t really filed late. The best and only lesson to be learned is never to put yourself in the position to argue that a claim wasn’t really late. This is unfortunately what Mr. Hall learned when filing a lawsuit for discrimination under the California Fair Employment & Housing Act (FEHA).

There are really two deadlines for filing a discrimination claim under the FEHA. First, an employee must exhaust his or her administrative remedies by filing a charge of discrimination with the California Department of Fair Employment & Housing (DFEH) (note: employees can usually file alternatively with the federal Equal Employment Opportunity Commission). The statute of limitations to file this administrative charge with the DFEH is generally one year (there is a 90 day extension for late discovered claims).

Then, if an employee then wants to sue in court, the DFEH will generally issue to the employee a right-to-sue letter. This letter itself gives the employee the second deadline, which is when the employee must file a complaint in court. According to the FEHA, an employee has one year to file in court (there are sometimes exceptions such as equitable tolling, continuing violations or some circumstances where one agency – either the DFEH or EEOC – is still investigations or conducting some further determinations or reviews).

Plaintiff’s employment lawyers have long been urging the courts to follow an important reality in employment decisions: discriminating individuals can taint an employment decision made by someone else, and the fact that the final decision maker doesn’t harbour a discriminatory motive himself/herself, should not protect the employer. Some courts have already accepted the “cat’s paw” theory, including several circuit courts. See Long v. Eastfield College (5th Cir. 1996) 88 F.3d 300, 307; Kientzy v. McDonnell Douglas Corp. (8th Cir. 1993) 990 F.2d 1051, 1057; Kendrick v. Penske Transp. Services, Inc. (10th Cir. 2000) 220 F.3d 1220, 1231; Shager v. Upjohn Co. (7th Cir. 1990) 913 F.2d 398. California’s courts of appeals have also adopted this standard. See, e.g., Reeves v. Safeway Stores, Inc. (2004) 121 Cal. App. 4th 95 (applying cat’s paw theory in a retaliation claim).

In good news for employees, the U.S. Supreme Court has now adopted its own version of cat’s paw liability in Staub v. Proctor Hospital (March 1, 2011) 131 S.Ct. 1186, making employer liability where discriminatory animus taints the ultimate decision to fire the law of the land.

The Supreme Court adopted this standard while interpreting USERRA (the Uniformed Services Employment & Reemployment Rights Act), which prohibits discrimination against an employee due to his or her military status or obligations. 38 U.S.C. § 4311. Like many statutes prohibiting employment discrimination, if the protected status (here military service) is a “motivating factor” in the decision to fire, the decision to fire is illegal.