182 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com To tilt the playing field even further to the complainant’s advantage, DFEH regulations provide that “where there is doubt about whether the statute of limitations has run,” the complaint will be accepted and timeliness “investigated and analyzed” during the investigation.313 As a result, it is in the discretion of the DFEH investigator to determine timeliness. A 2020 Court of Appeal decision did put a few teeth in the exhaustion requirement, however, when it held that a plaintiff challenging his employment termination as age discrimination could not rely on a newly amended DFEH administrative complaint to add class and disparate impact allegations. The Court of Appeal upheld the trial court’s denial of request for leave to amend the judicial complaint. The plaintiff, in amending his DFEH complaint more than three years after the DFEH had permanently closed his case, could not rely on the relation-back doctrine, in that the original DFEH complaint could not “bear the weight” of the newly asserted class and impact theories. The original DFEH complaint failed to allege that the employer had discriminated against anyone other than the plaintiff because of age, and did not even suggest that the employer had a policy that fell more harshly on older employees.314 6.15 Use of the Unfair Competition Law to Sue for Discrimination In America generally, laws designed to prevent unfair competition and antitrust violations do not enable employees to sue employers for employment discrimination. In California it’s different. The Court of Appeal has held that the Unfair Competition Law (which has a four-year statute of limitations) enables employees to sue employers for age discrimination, the reasoning being that an employer who engages in that discriminatory practice has obtained an unfair competitive advantage over other employers.315 Employees who sue under this statute, though, typically are limited in remedy to injunctive relief.316 6.16 Disregard of Federal Evidentiary Doctrines 6.16.1 Rejection of the “stray remarks” rule In America generally, courts rule as a matter of law (either on summary judgment or in a motion for judgment as a matter of law) against discrimination plaintiffs who rely on “stray remarks”—remarks made remote in time or otherwise disconnected from the challenged employment decision, remarks not made by anyone who made or influenced the decision, or remarks not directed to the plaintiff.317 In California it’s different. The Court of Appeal, in reversing a summary judgment for the employer in an age discrimination case, broadly repudiated the “so-called ‘stray remarks’ rule.” The Court of Appeal reasoned that the “stray remarks” rule would impermissibly permit trial judges to weigh evidence in ruling on motions for summary judgment.318 The Court of Appeal concluded that the plaintiff should have been able to thwart summary judgment with his assertions that co-workers (who had no apparent connection with the challenged employment decision) had called him “slow,” “fuzzy,” “sluggish,” and “lethargic.” In 2010, the California Supreme Court affirmed this reasoning, concluding that the alleged comments should be considered with all the evidence in the record.319 6.16.2 Rejection of the “same actor rule” In America generally, courts have followed the “same actor rule”: Where the same actor both hired and fired the same discrimination plaintiff within a short period of time, an inference arises that there was no discriminatory motive in the firing.320 So the reasoning goes: “[i]t hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological cost of associating with them), only to fire them once they are on the job.”321 . California courts also once followed this rule, in line with the general principle that FEHA interpretations should follow Title VII interpretations where the two statutes share the same basic purpose.322
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