Articles Posted in Discrimination

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.