180 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 6.11.5 Broader class of plaintiffs Ordinarily only employees and job applicants can bring retaliation claims, against their employer or prospective employer. Thus it was that a trial court granted summary judgment against a physician partner who claimed that her medical group removed her as a regional director because she had opposed sexual harassment of female employees. The Court of Appeal, however, reversed, concluding that it would further the purpose of FEHA—to eliminate employment discrimination—to allow a retaliation claim by the doctor, a non-employee, against the physician group, an employer, where the alleged retaliation was in response to her reporting employment discrimination.294 6.11.6 Lower causation standard Under Title VII, a retaliation plaintiff must prove that the “protected activity was a but-for cause of the alleged adverse action by the employer.” In other words, the plaintiff must prove that the adverse action would not have occurred but for the employer’s retaliatory motive.295 In California it’s different. FEHA plaintiffs need only show that an unlawful retaliatory intent was a “substantial motivating factor” in the employer’s adverse action.296 6.12 Special Rules for No-nepotism Policies Employers in America generally may forbid the hiring of anyone who is a relative of any existing employee. This policy does not discriminate against anyone on a protected basis. In California, it’s different. California prohibits discrimination based on marital status and interprets that prohibition in a peculiar way. The DFEH maintains that an employer cannot base an employment decision on whether an individual’s spouse is employed by the employer unless (1) there are “business reasons of supervision, safety, security or morale” such that an employer may “refuse to place one spouse under the direct supervision of the other spouse,” or (2) “the work involves potential conflicts of interest or other hazards greater for married couples than for other persons,” such that “business reasons of supervision, security or morale” warrant a refusal to have both spouses in “the same department, division or facility.”297 6.13 Difficulty in Obtaining Defendant’s Attorney Fees and Even Costs 6.13.1 Fees Under the federal law that most states follow, a discrimination plaintiff who loses a claim is liable for the defendant’s attorney fees if the action was frivolous, unreasonable, or without foundation, even if not maintained in subjective bad faith.298 Applying this standard, California courts have denied attorney fees to prevailing defendants in FEHA cases, even when the plaintiff has rejected the defendant’s more favorable offer of judgment.299 Legislation effective in 2019 clarifies the legislative intent to deny both attorney fees and costs to offer-making FEHA defendants—even if they make an offer of judgment and win, and even if the plaintiff wins but fails to beat the offer—unless the lawsuit was frivolous, unreasonable, or groundless.300 And even those prevailing California defendants who can show that a plaintiff’s FEHA claim was frivolous may face still further obstacles to the recovery of attorney fees. First, the Court of Appeal has held that awarding attorney fees to a prevailing defendant was an abuse of discretion absent proof regarding the plaintiff’s ability to pay for them: “The trial court should also make findings as to the plaintiff’s ability to pay attorney fees, and how large the award should be in light of the plaintiff’s financial situation.”301 Second, in a FEHA decision that affirmed summary judgment for the two defendants—the plaintiff’s employer and her supervisor—the Court of Appeal affirmed the trial court’s decision to award only $1.00 in attorney fees to the prevailing individual defendant, even though the suit against her was “frivolous and vexatious.”302 The Court of
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