194 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 269 Gov’t Code § 12940(l)(2). 270 Gov’t Code § 12940(l)(1). 271 2 Cal. Code Regs. § 10159 et seq. But see Soldinger v. Northwest Airlines, Inc., 51 Cal. App. 4th 345 (1996) (following federal law on religious accommodation issue with no discussion of the factors enumerated in the FEHC regulations). 272 Gov’t Code § 12940(l)(1) 273 Gov’t Code § 12940(l)(3). 274 Dykzeul v. Charter Communs., Inc., 2019 U.S. Dist. LEXIS 228981, at *10, 2019 WL 8198218 (C.D. Cal. Nov. 18, 2019); EEOC v. Abercrombie & Fitch Stores, Inc., 966 F. Supp. 2d 949, 960 (N.D. Cal. 2013). 275 Schlitt v. Abercrombie & Fitch Stores, Inc., 2016 U.S. Dist. LEXIS 63699, at *29, 2016 WL 2902233 (N.D. Cal. May 13, 2016). 276 Westendorf v. W. Coast Contractors of Nevada, Inc., 712 F.3d 417, 422 (9th Cir. 2013); McCoy v. Pac. Mar. Ass’n, 216 Cal. App. 4th 283, 288 (2013). 277 Federal law may go further than indicated in text. In Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., 555 U.S. 271 (2009), the Supreme Court held that a witness during a sexual harassment investigation engaged in protected oppositional activity by telling the company investigator that the alleged harasser had harassed her. In holding that oppositional activity is not limited to activity that the plaintiff initiates, the Court stated in dictum that oppositional activity can even include passive activity such as standing pat and refusing to implement an unlawful order to discriminate. 278 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042-48 (2005). 279 Gov’t Code § 12940(l)(4) (unlawful to “retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision [regarding religious accommodation], regardless of whether the request was granted”); id. § 12940(m)(2) (unlawful to “retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision [regarding disability accommodation], regardless of whether the request was granted”). This amendment was in response to Rope v. Auto-Chlor Sys. of Washington, Inc., 220 Cal. App. 4th 635 (2013), which held that a mere request for a disability accommodation is not itself oppositional activity and thus is not protected from retaliation. 280 Joaquin v. City of Los Angeles, 202 Cal. App. 4th 1207, 1226 (2012) (“an employer may discipline or terminate an employee for making false charges, even where the subject matter of those charges is an allegation of sexual harassment”). 281 McGrory v. Applied Signal Tech., Inc., 212 Cal. App. 4th 1510, 1528 (2013). 282 Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1054 (2005). 283 Id. at 1055. 284 Natl’ R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). 285 Yanowitz, 36 Cal. 4th at 1058. See also Dominguez v. Washington Mut. Bank, 168 Cal. App. 4th 714, 724 (2008) (reversing summary judgment against claim of sexual-orientation harassment, where plaintiff alleged co-worker made homophobic verbal attacks on her, then ceased verbal attacks and began engaging in other conduct to impede plaintiff’s ability to do her job; rejecting defendant’s argument that the later conduct was different and unrelated in nature to the prior conduct; plaintiff raised triable issues as to whether later conduct constituted continuing FEHA violation); Jumaane v. City of Los Angeles, 241 Cal. App. 4th 1390, 1404 (2015) (continuing violation theory did not apply because time-barred acts of retaliation had already reached a threshold level of “permanence”; they had culminated in a suspension at which point the plaintiff knew that future efforts to end the unlawful conduct would have been futile). 286 Taylor v. City of Los Angeles Dep’t of Water & Power, 144 Cal. App. 4th 1216, 1237 (2006) (supervisor can be held personally liable for retaliation under FEHA); Winarto v. Toshiba Am. Elec. Components, Inc., 274 F.3d 1276, 1288 (9th Cir. 2001) (same); Walrath v. Sprinkel, 99 Cal. App. 4th 1237, 1242 (2000) (same). 287 Reno v. Baird, 18 Cal. 4th 640, 663 (1998) (FEHA does not create personal liability for supervisors who make discriminatory personnel management decisions); Khajavi v. Feather River Anesthesia Med. Grp., 84 Cal. App. 4th 32, 38 (2000) (only employer, not supervisor, can be liable for tort of wrongful discharge in violation of public policy). 288 Gov’t Code § 12940(h) (unlawful for “any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part”). 289 Jones v. The Lodge at Torrey Pines P’ship, 42 Cal. 4th 1158, 1162 (2008). 290 Fitzsimons v. Cal. Emergency Physicians Med. Grp., 205 Cal. App. 4th 1423, 1428-29 (2012). 291 Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 133 S. Ct. 2517, 2533 (2013). 292 Harris v. City of Santa Monica, 56 Cal. 4th 203, 232 (2013); Alamo v. Practice Mgmt. Info. Corp., 219 Cal. App. 4th 466, 478 (2013); see also Mendoza v. W. Med. Ctr. Santa Ana, 222 Cal. App. 4th 1334, 1340-41 (2014). 293 2 Cal. Code Regs., Tit. 2 § 11057. 294 Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). See also Cummings v. Benco Bldg. Servs., 11 Cal. App. 4th 1383, 138788 (1992) (defendant’s attorney fees available only if plaintiffs’ lawsuit is deemed unreasonable, frivolous, meritless, or vexatious). 295 Mangano v. Verity, Inc., 167 Cal. App. 4th 944, 951 (2008) (affirming denial of defendant’s motion for attorney fees even though plaintiff’s rejection of Code of Civil Procedure section 998 offer made defendant the prevailing party; section 998 does not trump Christiansburg standard: defendant still must show the plaintiff’s case was frivolous). 296 SB 1300, 2018 bill amending Gov’t Code § 12965(b) (“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court
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