Wednesday, September 18, 2013

+Maternity case heads for retrial

Daily Journal

Monday, September 9, 2013
“Maternity case heads for retrial”

Order is first decision of its kind to apply state Supreme Court ruling
By Laura Hautala
A state appellate court has ordered a retrial in a pregnancy discrimination lawsuit after applying a recent landmark ruling that states a jury can only find an employer liable if discrimination was a “substantial motivating factor” in a worker’s firing.
The order is the first published decision to apply the state Supreme Court’s February ruling in Harris v. City of Santa Monica to decide whether a retrial is merited.
The case had to do with a billing clerk who was fired three hours after she returned to work from maternity leave at a small Los Angeles publishing company. A jury awarded her $10,000 in damages, and the court awarded attorney fees of more than $50,000.
But, “in accordance with Harris, we now hold that the trial court prejudicially erred in instructing the jury,” wrote Justice Laurie D. Zelon, who authored Thursday’s opinion. Harris said that asking jurors to find whether discrimination was a “motivating factor” in a termination was not sufficient – the discriminatory motivation needed to be “substantial.” Alamo v. Practice Management Information Corp., 2013 DJDAR 11998 (Cal. App. 2nd Dist. Sept. 5, 2013).
“It followed the precise contours of the Harris decision,” said Paul S. Marks, a defense attorney at Neufeld Marks PC who represented the publishing company. “However, every case has a different factual and procedural posture, and one can never tell if there’s some unusual aspect of the case that would have distinguished it from Harris.”
Attorneys who handle so-called “mixed motive” cases, where more than one factor may have brought about a firing or disciplinary action, are looking to the decision for clarity in how they must instruct juries.
Plaintiffs’ attorney Michael Rubin of Altshuler Berzon LLP in San Francisco said the appellate courts had no option but to remand similar cases, “because the Supreme Court in Harris – without explaining the difference between a motivating factor and a substantial motivating factor – decided it was enough to require remand in that case.” Rubin was not involved in Alamo.

However, Karl A. Gerber, an attorney at Employment Lawyers Group in Sherman Oaks who represented the plaintiff, said his client’s case was very different from Harris.  karl gerber daily journal
“It wasn’t a mixed motive case,” he said. “They said they fired her because she was a disturbance, not because she was on maternity leave.”
Gerber said he would be surprised to hear a defense attorney argue that their client had some discriminatory intent, but that it wasn’t “substantial.”
Nonetheless, Zelon’s decision Thursday precludes the publishing company from making that argument in the retrial. Paul W. Cane, a partner at Paul Hastings LLP in San Francisco who defends companies in wrongful termination lawsuits, said that part of the decision was dispiriting. Cane was not involved in Alamo but argued before the Supreme Court on behalf of the city of Santa Monica in Harris.
“Defendants, beware,” Cane said. “Every defendant, out of an abundance of caution, should be including a dual-motive affirmative defense.”

Karl Gerber has been in the front line of Employment Discrimination Cases since 1993. Call his our office and find out if you have a case 877-525-0700 toll free.

Tuesday, September 17, 2013

+Sexual Harassment as Abuse of Authority

Supervisor Sexual Harassment

Sexual harassment is about subjugation. In my experience, a vast number of the sexual harassers my clients have sued do not expect to obtain sexual gratification. The harassment is about control, abuse, and abuse of power. The Appellate Court failed to comprehend how such utterly offensive comments could constitute an abuse of power through sex.
The court also decided that sexual taunting was commonplace at this particular workplace. The employee was an iron worker tying rebar at Conco sites. Apparently, the court has created a new type of immunity to vulgar workplaces of any industry. The court also decided none of this conduct caused the employee severe emotional distress despite the fact he cried as he reported this to the safety manager.
It would seem that there are other ways to criticize an employee, and probably create a worker’s compensation case, that do not so closely relate to male on male sexual interests. Had the supervisor not been interested in homosexual practices, or how good a man looked in his pants, words would not have flowed from his mouth with such ease about what might be stimulating.

Other Kinds of Sexual Harassment

Now every time there is same sex harassment, the lawyer representing the employee will have to ask whether the harasser is gay. The harasser’s claims about whether he is gay will then be subject to scrutiny. Consider this opinion a judicial assault on any gay people who are not openly gay and proud of their sexuality. Other disingenuous reasons for the appellate court’s decision may also be that all of the harassment happened in one day, there was an apology, and the ride home. These mitigating circumstances should not supersede such awful behavior.This is an example of a court being restrictive. The court decided the matter should be sent back to the trial court on the basis that there might have been retaliation for complaining about sexual harassment even though none of this amounted to sexual harassment. This logic does not make a tremendous amount of sense other than the court minimizing and subtracting from the panoply of laws this conduct should violate, and potentially holding the harasser individually responsible through laws on sexual harassment and the intentional infliction of emotional distress.It is also interesting to note that this case started with Judge M. True III’s grant of a summary judgment motion. I have never personally had any experience with this judge, but do note that a google search of his name has more negative content than I recall seeing for any other trial judge. However, prior to becoming a judge this man represented employees. Odd. Justice Bruiniers, who wrote the opinion, was apparently a police officer during the “turbulent years” at Berkeley (1967-1973). He also served in the Marines. In private practice, he represented businesses.
If any luck, the California Supreme Court will take review of this abomination of a judicial opinion. Alternatively, the legislature could take action, but with at least one of them making negative jokes about Italian Americans one must wonder whether anti-discrimination is a thing of the past. [1] Apparently this was also a funny joke to the panel of the three appellate justices who concurred in this opinion because they didn’t see there being a triable issue of fact for the jury whether this might be sexual harassment, or the intentional infliction of emotional distress.
Contact us, or call 1-877-525-0700 to consult with a sexual harassment lawyer.