Litigation Topics: Discrimination

It is hornbook law that employers must “reasonably accommodate” disabled employees. But what happens when an employee can still work, but can’t perform all of the essential duties of his or her former job?  Does the employer have to find a different position?  What if the disabled worker is more senior to another employee who occupies the lesser position that could be filled by the disabled person?  Can the disabled worker “bump” the junior employee?

Housing Act (FEHA) protect employees against discrimination because of their disabilities.  Mental disabilities are covered under both laws.

But there are two key factors that are always in play in these cases. First, the employee in question must be “otherwise qualified.” That is to say, the employer must be able to perform his or her job, assuming the employer can reasonably accommodate the disability.

The “Cat’s Paw” rule is an important component of employment discrimination litigation.  Under that theory, if a supervisor actively discriminates against an employee, but convinces a decision maker “up the line” to terminate the employee for non-discriminatory reasons, there may still be liability on the employer’s part, even though the actual decision maker acted without an improper motive.

In Lopez v. Pacific Maritime Association, the plaintiff was a rehabilitated drug addict.  He wanted to become a longshoreman.  He applied for work in Long Beach in 1997, but failed a drug test at that time.  He recognized his addiction to drugs and alcohol and worked hard to overcome it.

A decision from the Second District court of appeal is fair warning to any person looking to sue for employment discrimination under California’s Fair Employment and Housing Act (Cal. Gov. Code, §§ 12900, et seq).  Prior to filing suit, a claimant must submit an administrative claim to the Department of Fair Employment and Housing (DFEH). It is only after that administrative process concludes that a lawsuit may be filed.

If a plaintiff wins an employment discrimination case under Title VII, he/she is entitled to an award of attorney’s fees.  A question we are asked all the time is: what happens if the plaintiff loses?  Can the defendant claim an award of fees too?

The answer is:  it depends.  If the claim is found by the court to be “frivolous” a successful defendant may be entitled to an award of fees.  The legal standard is that the claim must be “frivolous, unreasonable or without foundation.” (See Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990).) 

Title VII rules prohibiting employers from retaliating against employees are pretty clear. Retaliation against a person to asserts the right to be free of employment discrimination is a major offense.  But what if the employer doesn’t retaliate directly against an employee who complains about a violation, but rather, takes action against a third party who may have some relationsihp to the victim, such as the person’s fiancé?  Can the employee still state a retaliation claim under Title VII?

When a collective bargaining agreement contains a clause setting forth time limits for disciplinary action, courts will apply it, even if it means reinstating an employee who has been terminated for sexual harassment. 

An old adage says that you only get one bite at the apple.  This can be true in litigation, especially if you have already pursued a claim unsuccessfully before an administrative agency. However, not every case is the same, and not every administrative proceeding will preclude later litigation in court over similar issues.

Title VII of the Civil Rights Act of 1964 (42 USC section 2000d) prohibits employment discrimination based on race, color, religion, sex or national origin. But in order to state a claim, the plaintiff must be an employee.  The statute does not cover independent contractors, a fact confirmed in a ruling from the Ninth Circuit in Murray v. Principal Financial Group, Inc.