184 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 4 42 U.S.C. § 1981(a)(b)(3); Vaughan v. Anderson Reg’l Med. Ctr., 849 F.3d 588, 594 (5th Cir. 2017); Comm’r of Internal Revenue v. Schleier, 515 U.S. 323, 326 (1995). 5 Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). 6 Id. 7 AB 9, 2019 bill amending Gov’t Code §§ 12960, 12965 and reenacting a bill Governor Brown vetoed in 2018. The extended deadline for filing does not revive lapsed claims. Filing a complaint means filing an intake form with the DFEH, with the operative date of the verified complaint relating back to the filing of the form. 8 42 U.S.C. § 2000e-5(e)(1). 9 See Gov’t Code §§ 12965(b). 10 See 42 U.S.C. § 2000e-5(f)(1). 11 42 U.S.C. § 12102(1)(A). 12 Bagatti v. Dep’t of Rehab 97 Cal. App. 4th 344, 360-61 & n.4 (2002).. But see Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 972-75 (2008) (disagreeing with Bagatti). 13 42 U.S.C. §§ 12112(a), (b)(5)(A). 14 Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., 555 U.S. 271, 129 S. Ct. 846 (2009). Note, though, that in dictum the Supreme Court said that oppositional activity may consist of staying put and refusing to implement an unlawful order to discriminate. Extending protection for oppositional activity that far would not differ materially from the California standard. 15 McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88 (2008) (plaintiff’s voluntary pursuit of internal administrative remedy will toll running of statute of limitations on FEHA claim, even if plaintiff voluntarily abandons the internal proceeding). 16 See Johnson v. Ry. Express Agency, 421 U.S. 454 (1975). 17 Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 135 (1st Cir. 2004); Huseein v. Waldorf Astoria, 134 F. Supp. 2d 591, 599 (S.D.N.Y. 2001); EEOC v. Sambo’s of Ga., Inc., 530 F. Supp. 86, 91 (N.D. Ga. 1981). 18 Groff v. DeJoy, Postmaster Gen., 600 U.S. 447, 471 (2023) (when determining whether an accommodation constitutes an “undue hardship,” an employer must take into account “all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of an employer”) (internal quotations omitted). 19 Harris v. City of Santa Monica, 56 Cal. 4th 203, 211 (2013) (plaintiff who proves a protected status was a substantial motivating factor for an adverse employment action can thereby obtain declaratory relief, injunctive relief, and reasonable attorney fees and costs, although the employer who proves it would have reached the same decision even absent that motivating factor can avoid further relief in the form of reinstatement, back pay, front pay, and noneconomic damages). The Harris result, while pro-plaintiff, did improve on the standard jury instruction, CACI 2500, which would have made employers liable for adverse employment actions whenever a protected status or activity “was a motivating reason/factor,” where a “motivating factor” as “something that moves the will and induces action even though other matters may have contributed to the taking of the action”). The Court of Appeal has held, rather harshly, that an employer had waived the Harris defense (not yet announced) when it had failed to plead it in an answer. Alamo v. Practice Mgmt. Info. Corp., 219 Cal. App. 4th 466, 470 (2013) (defendant “not entitled to an instruction on the mixed-motive or same-decision defense because it failed to plead that defense or any other affirmative defense alleging that it had a legitimate, nondiscriminatory or nonretaliatory reason for its discharge decision in its answer”). On the brighter side, the Court of Appeal has extended the Harris reasoning to a claim for tortious discharge in violation of public policy, where the public policy asserted is the FEHA. Davis v. Farmers Ins. Exch., 245 Cal. App. 4th 1302, 1322-23 (2016) (affirming trial decision to give Harris jury instruction). 20 Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (under the federal ADEA, plaintiff alleging that adverse action was “because of” his age must “establish that age was the ‘but-for’ cause of the employer’s adverse action”). Title VII has a different standard, because its own “because of” language was amended by the 1991 Civil Rights Act. See 42 U.S.C. § 2000e-5(g)(1)(B)(ii). The California Supreme Court in Harris crafted, via creative judicial interpretation, a result that closely resembles the legislative compromise that Congress crafted in the 1991 Title VII amendments. 21 Gov’t Code § 12926(o) (“Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or veteran or military status includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.”). 22 Lab. Code §§ 1101, 1102 (under section 1101, employers must not make regulations or policies “[f]orbidding or preventing employees from engaging or participating in politics,” becoming a political candidate, or “[c]ontrolling or directing ... the political activities or affiliations of employees”; under section 1102, employers must not “coerce or influence” employees “to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity”). 23 Gov’t Code § 12940(a) (employers shall not “refuse to hire or employ” a person, or prevent them from participating in a “training program leading to employment,” based on the person’s “marital status”). 24 Gov’t Code § 12940(a) (employers shall not “refuse to hire or employ” a person, or prevent them from participating in a “training program leading to employment,” based on the persons “sexual orientation”); Gov’t Code § 12926(s) (“ ‘Sexual orientation’ means heterosexuality, homosexuality, and bisexuality.”). 25 2 Cal. Code Regs. § 11030(d) (defining “sex stereotype” as “an assumption about a person’s appearance or behavior, gender roles, gender expression, or gender identity, or about an individual’s ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual’s sex”). 26 Gov’t Code §§ 12920, 12921, 12926(r)(2), 12930(i), 12931, 12940(a)-(d), 12944(a), (c), 12949, 12955, 12955.8, 12956.1(b)(1) & 12956.2; see also 2 Cal. Code Regs. § 11030 (a), (b), (e).
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