NLRB Judge Orders Reinstatement Of Employee Who Made Racist Taunts Toward African-Americans

The National Labor Relations Board promotes itself as a government agency that “safeguards employees’ rights,” but you would not know it from a recent ruling upholding racist statements made by union supporters on a picket line.  Earlier this month, in Cooper Tire & Rubber Company an administrative judge of the NLRB found that racist taunts made by strikers against African-American employees crossing a picket line were protected under the law.   Continue reading

Supreme Court Opens The Floodgates To Pregnancy Discrimination Cases

This week, in Young v. United Parcel Service, Inc., the United States Supreme Court found that, under Title VII, employers must provide pregnant employees with the same accommodations that they provide to employees in similar positions who are “similar in their ability or inability to work.”  In those terms, it’s an unremarkable decision — treat pregnant employees the same way you treat others.  But dig just a little deeper into the opinion and you can see that a clear majority of the court — from both ideological ends — has made the task of defending claims under the Pregnancy Discrimination Act (PDA) much more difficult. Continue reading

Can An Employer Force Out An Employee For Unpopular Political Views: The Brendan Eich Story

Brendan Eich resigned his post as CEO of Mozilla, a California-based company, in early April after just 14 days on the job.  The reason for his sudden departure and short tenure?  It became public that in 2008, Eich contributed $1,000 in support of the Proposition 8 campaign, the California voter referendum that sought to ban same-sex marriages (Proposition 8 was later overturned by the U.S. Supreme Court).  There were no allegations that Eich had discriminated against anyone on the basis of sexual orientation.  There were no claims that his personal beliefs about gay marriage had spilled into the workplace impacting Mozilla employees, vendors or workplace policies.  There was, however, a firestorm of tweets from Mozilla employees demanding Eich step down.  One employee placed herself on unpaid leave in protest.  OkCupid posted a statement that Mozilla Firefox browser users should protest Eich’s elevation by switching to a different Internet browser.  The reaction on social media opposing Eich as the next CEO was swift and vocal.  Mozilla has since stated that less than 10 of its 1,000 employees insisted upon Eich’s resignation, while many others supported his leadership and only expressed disappointment of Eich’s support of Proposition 8.   Continue reading

EEOC Investigations Gone Wild: The Sobering Tale Of Aggressive Government Efforts To Drum Up Class Actions

Picture this: you get to work on a Monday morning, grab a cup of coffee and turn on your computer only to find that 1,300 of your employees received an e-mail asking various questions about perceived age discrimination in your workplace as part of an “official inquiry” and a “federal investigation.”  Would that ruin your day?  It likely did for a group of HR and legal professionals at Case New Holland, Inc., a large agricultural and construction equipment business.

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Iowa Dentist Lawfully Fires Attractive Female Assistant Because She Was A Threat To His Marriage

In the salacious realm of sex discrimination law, the Iowa Supreme Court recently rendered an opinion that just might contend for the best blog fodder of 2013. Whether the decision in Nelson v. James H. Knight, DDS, P.C. will have any ripples in equal employment opportunity law outside Iowa remains to be seen, but it is surely thought provoking.

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Breaking News: USSC Issues Decision in Fisher vs. UT Austin

The United States Supreme Court issued its 7-1 decision in Fisher vs. University of Texas at Austin today.  Justice Kennedy delivered the opinion of the Court, Justice Ginsburg dissented, Justice Kagan recused herself.

The Court vacated the decision of the Fifth Circuit Court of Appeal which had upheld the University’s consideration of race as one of many factors when evaluating applicants for admission.  The Court found that the Fifth Circuit did not appropriately apply the required strict standard of scrutiny.   When racial classifications are used, they are constitutional only if they meet the test for strict scrutiny, which requires a showing of (1) a compelling state interest (in this case diversity as an educational goal) and (2) that the use of such racial classifications is narrowly tailored to achieve the compelling state interest.

According to the majority opinion, the Fifth Circuit accorded the University too much deference when it held that the Petitioner, Abigail Fisher, could only challenge whether the University’s decision to use race as an admissions factor “was made in good faith.”   According to the Court, the University had been given too much deference as to whether its plan was “narrowly tailored to achieve its stated goal” in achieving a more diverse student body.  As such, the Fifth Circuit must review the case again under the strict scrutiny standard without according the University such deference.

We cannot predict what the Fifth Circuit will do.  The Supreme Court has accepted another admissions case and we believe that this issue is far from over.  In concurring opinions today, Justices Thomas and Scalia signaled that they do not consider the educational benefits of diversity to be a compelling state interest that justifies the use of race in evaluating candidates for admission.

Given all of this uncertainty and the impact that diversity has on all of our workplaces, we will continue to monitor this situation and will keep you posted…

- Natasha Baker

A Busy Day In The World of Employment Law

In case you slept late this morning, you missed a flurry of activity in the world of employment law.  The U.S. Supreme Court issued a trio of decisions which affect workplace relations.  In Vance v. Ball State University, the Court held that a supervisor for purposes of vicarious liability under Title VII is a someone whom the employer empowers to take tangible employment actions against the victim.  In University of Texas Southwestern Medical Center v. Nassar, the Court found that retaliation claims under Title VII require proof of “but for” causation, rather than the lower standard of proof the plaintiff’s bar offered.  Finally, in Fisher v. University of Texas At Austin, the Court found that affirmative action in education was still permissible, but nonetheless remanded the case to the Fifth Circuit because the appeals court did not apply the appropriate test for strict scrutiny of race-based decisions.

In other significant news, the U.S. Supreme Court agreed to hear the Noel Canning decision from the D.C. Circuit which had found that the President’s recess appointments to the NLRB were invalid and that the Board did not have a proper quorum.   And, last week, the Court continued its assault against class actions in American Express Co. v. Italian Colors Restaurant, finding that contractual waivers of class arbitration continue to be enforceable, even if the plaintiff’s cost of litigation exceed her potential recovery.

Stay tuned to the blog for updates on these recent developments in the upcoming days.

- Dan Handman



Kitchen-Sink Guidance On Harassment, Retaliation and Joint Employment Issues

A recent case from the Court of Appeal for the Second Appellate District is a veritable  grab bag of issues for employers.  You name it – the court gave guidance on harassment, retaliation, and joint employer issues in McCoy v. Pacific Maritime Association.

McCoy worked for over a decade as clerk for terminal operator Yusen when she and several coworkers filed a federal discrimination lawsuit against their employer.  The lawsuit led to a confidential settlement between the parties.  Under the settlement, Yusen was required to train McCoy to be a vessel planner, a more prestigious position.

McCoy subsequently sued PMA, an organization that serves as a bargaining agent for Yusen, the employer, alleging that she was sexually harassed and suffered emotional distress during the vessel planner training, and that she was retaliated against due to the filing of the previous lawsuit.  Apparently, the harassment consisted of a co-worker’s comment about the buttocks of other female employees and his crude gestures toward a woman when her back was turned.  None of the sexual comments were directed at her.

The Court of Appeal affirmed the dismissal of McCoy’s sexual harassment claim, reasoning that although the comments were crude and offensive, the conduct, which occurred only five to nine times over a four-month period, did not create a work environment “permeated” with sexual harassment.  Moreover, the employee making the offensive remarks was not McCoy’s supervisor, and McCoy admitted she never mentioned the remarks or anything about sexual harassment to management.  Thus, there was no evidence that PMA knew or should have known of the alleged harassment and failed to take appropriate action.

On the retaliation claim, however, a jury awarded McCoy $1.2 million in damages, but the trial court granted PMA’s motion for judgment notwithstanding the verdict.  On appeal, the court ruled that the trial court had erred in excluding McCoy’s “me-too” evidence by other coworkers who complained they were retaliated against due to their participation in the same lawsuit as McCoy and who received the same training as McCoy as a result of the settlement.  Because the consideration of “me-too” evidence is fact intensive, the Court opined that the trial court should have at minimum conducted a hearing to ascertain the details of the evidence and similarity to McCoy’s claims before subjecting it to blanket exclusion.

The Court of Appeal also held that, aside from the “me too” evidence, there was substantial evidence from which a jury could find retaliation.  Yusen did four things that could support a retaliation verdict: (1) it exposed details of the confidential settlement agreement to McCoy’s supervisor; (2) it tolerated the offensive remarks by McCoy’s co-workers; (3) it denied her needed assistance; and (4)  it gave her substandard training compared to the other trainees.   

As for PMA, the court found it was not an employer under the FEHA.  Although PMA negotiated labor contracts on Yusen’s behalf, Yusen paid McCoy, supervised her and employed the co-workers who allegedly retaliated against her. 

This case is a reminder that even when an employer is not held liable for sexual harassment, employers can steal defeat from the jaws of victory by retaliating against employees.

Amy Durgan

“Me Too” – Or Perhaps Not – The California Court of Appeals Excludes “me too” Evidence

On March 28, 2013, the California Court of Appeals upheld a Los Angeles Court’s ruling in Hatai v. Dept. of Transportation, precluding the Plaintiff, Hatai, from presenting “me too” evidence from other employees allegedly discriminated against by Hatai’s boss. 

Hatai sued the Department of Transportation (CalTRANS), his current employer, alleging he was discriminated against because of his Japanese ancestry and his Asian race.  At the time of trial Hatai attempted to broaden his argument by claiming that his boss, an Arab, discriminated against all employees who were not of Arab descent. 

Before trial CalTRANS brought a Motion In Limine to exclude evidence that Hatai’s supervisor had discriminated against non-Asians, claiming that discrimination against anyone of non-Arab descent was not the claim brought in his lawsuit.  Hatai’s counsel conceded that his theory was that Hatai’s supervisor had discriminatory animus against anyone who was not Arab. 

The Court ruled that since Hatai’s claim was originally pled as an anti-Asian claim, he was only entitled to introduce evidence under the “me too” doctrine – i.e., that employees had also been subject to similar discrimination.  But, it also found that Hatai had not shown enough evidence of pro-Arab favoritism to allow such evidence.

The California Court of Appeals affirmed the trial court’s decision.  In Johnson v. United Cerebral Palsy, the plaintiff had claimed her employer fired her based on her pregnancy, and was allowed to submit evidence that the employer had fired other women also because they were pregnant.  The Johnson Court ruled that such “me too” evidence was admissible because evidence of pregnancy discrimination against other employees was sufficiently similar to the claim set forth by the plaintiff. 

In Hatai, The Court of Appeals held that Hatai’s evidence was not sufficiently related to his claim of discrimination or harassment based on Asian or Japanese ancestry.  Therefore, “me too” evidence would only be allowed with respect to other CalTRANS employees of similar descent or ancestry who allegedly had been discriminated against.  Based on his pleading, any broader admissibility of pro-Arab favoritism would not be admitted.

While this case sets forth a favorable decision for employers, in some part this was based upon the Plaintiff’s failure to specifically plead that his supervisor discriminated against non-Arabs, as opposed to Asians.  As has been consistent in California, “me too” evidence is admissible in discrimination and harassment cases.  While generally this will be limited to individuals of the same protected category alleged by a plaintiff, employers should be aware that in a favoritism kind of case, “me too” evidence may be admissible on a much broader scale. 

Greg Glazer


Harris v. City of Santa Monica: Great For Employers, But Will It Last?

Today, the California Supreme Court issued the much-awaited decision in Harris v. City of Santa Monica, a case which tested the viability of the so-called “mixed motive” defense for employers in a discrimination case.  Our e-Alert on the case can be found here.

In a 6-0 opinion, the court found that an employer had a complete defense to all claims for damages if it could establish that its decisions were motivated by both legitimate and discriminatory reasons.  The court also found, however, that employees could pursue claims for injunctive or declaratory relief and their attorneys could recover their fees in appropriate cases.

Although it’s a major win for employers, the real question is whether the decision will stand the test of time.  In 1989, the U.S. Supreme Court issued a similar decision as to “mixed motives” under Title VII, allowing the defense as a complete bar to discrimination claims, only to have a Democratic Congress amend the statute two years later.  With Democrats holding a super-majority in both the State Assembly and the Senate and a Democratic governor, one could reasonably question whether the Legislature will follow that lead and amend the FEHA to do away with the mixed motive defense.  Time will tell. 

- Dan Handman