CalEmployeeRights

US Supremes Decide Retaliation Case

            As previously discussed in this blog, one employment case before the Supreme Court during this term was Crawford v. Metropolitan Government of Nashville and Davidson County Tennessee.  Well, yesterday the Court issued its ruling in favor of the employee. 

 

Generally this case asked whether or not the anti-retaliation provision of the 1964 Civil Rights Act extends coverage to an employee who speaks out about discrimination in response to question put to her by her employer during an internal investigation as opposed to the employee actually initiating the complaint.  In a unanimous decision the Supreme Court held that the anti-retaliation provision protected the employee in such situations. 

 

            This ruling comports with how California courts interpret the protections of the California Fair Employment and Housing Act. 

 

For a more complete examination of the Crawford case and the arguments each side made, look at my earlier blog entry.  Additionally, a good discussion of the Supreme Court’s holding can be found here.

 

--Michael Sachs

More Schroer Information

     As promised, here are some additional links and some additional information on the ruling in Schroer v. Library of Congress.

     A very full analysis of the opinion and the course the case took on its path to finally reaching a verdict can be found here.  Additionally, this blog entry contains an analysis of the ruling and how Judge James Robertson carefully crafted and supported his opinion in this case.  The full text of the Court's opinion is available here.  The interesting thing to note is how the Court found for Schroer both on the sex stereotypes theory discussed below, and even more importantly found that discrimination on the basis of gender identity is sex discrimination.

     A more general overview can be found in this CNN story or in this story.     

     Finally, if you are interested in this topic or the general topic of how 9th Circuit Courts view the "because of sex" language in Title VII sex stereotyping cases, I recommend reading two cases cited by Schroer in support of her position: Rene v. MGM Grand Hotel, Inc., (9th Cir. 2002) 305 F.3d 1061 and Nichols v. Azteca Rest. Enters., Inc., (9th Cir. 2001) 256 F.3d 864.  Both cases find that the Title VII's "because of sex" language protected homosexual male plaintiff's who were harassed because they failed to fit into gender stereotypes. 

     Based on these prior Ninth Circuit rulings, it's my gut feeling that even prior to the ruling in Schorer, the Ninth Circuit would have found that Title VII protected transgender plaintiffs under sex stereotyping theories as the Sixth Circuit did in Smith v. Salem (6th Cir. 2004) 378 F.3d 566.

    I'm quite sure that the government will appeal the ruling in Schroer so this issue is far from closed, but at least in the meantime, this gives plaintiffs more ammunition under Title VII.

     --Michael Sachs

Jury Awards Plaintiff $1.3 Million Total Damages In Retaliation Claim

     A California jury awarded Jane Mootz $800,000 in non-economic damages for retaliation she suffered at the hands of her employer the California Department of Corrections and Rehabilitation.  

Woman Claims Retaliation Over Health San Francisco Dispute

     There is an interesting story in the San Francisco Chronicle today discussing a potential lawsuit under the Healthy San Francisco Program.  Healthy San Francisco requires employers with at least 20 staff members to offer health coverage to employees.  Information regarding Healthy San Francisco can be found at the program’s homepage. 
     Julie Ward claims that her former employer Crane and Co. was not properly funding employee insurance benefits.  She began asking about Healthy San Francisco coverage in January 2008 and was ignored by her boss.  On May 8, she threatened to file a complaint with the city about this coverage, and was then fired on May 9.
     Obviously Crane and Co. has been tight lipped on this issue, simply stating that the firing had nothing to do with the questions about health coverage.  Ward counters that she received nothing but praise from her boss prior to the requests for health coverage.
     The city of San Francisco is currently investigating Ms. Ward’s claims.  It will be interesting to see what information this investigation yields and how this claim proceeds. 
     --Michael Sachs

"Lobstergate" Retaliation Verdict vs. City of Long Beach

The recent Verdictsearch California (subscription req'd) reports a $4.1 million verdict by three Long Beach police officers against the City of Long Beach for retaliation.  CBS2.com also has coverage.

Seems that some of Long Beach's finest went illegally lobster diving on city time.  The plaintiff officers reported it.  They were called "snitches," denied job opportunities, had tires punctured, had feces smeared on a locker room towel, bullets stolen, etc.  One officer was forced into early disability retirement.

The Long Beach Press-Telegram reported in August, 2007 that the parties had mediated a settlement of $1.95 million, but the city counsel rejected it.  The jury found unlawful retaliation, and awarded compensatory damages to the three plaintiffs ranging from $1.16 million to $1.56 million.

                                                          Bruce Nye

Supremes Decide Jones v. Lodge at Torrey Pines

The California Supreme Court has decided in Jones v. Torrey Pines (2008) ___ Cal.4th ___ (S151022) that non-employer individuals cannot be held liable for retaliation.  The applicable part of the FEHA, Government Code section 12940(h) makes it unlawful for "any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because that person has filed a complaint, testified, or assisted in any proceeding" under FEHA.  Two California courts of appeal and the Ninth Circuit have all held that this language is unambiguous and means what it says:  an individual may not retaliate against a person who exercises FEHA rights, and can be held liable if he or she does.  Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216;  Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237;  Winarto v. Toshiba America Electronics Components (9th Cir. 2001) 274 F.3d 1276.

Not so, said the Supreme Court:  the use of the term "person" is ambiguous, and the Court therefore goes through an extensive amount of "interpretation" to render the word surplusage to support its holding. In an  impassioned and very well-reasoned dissent, Justice Moreno (joined by Justices Werdegar and Kennard) assails the Court for implementing its own views of public policy and incentivizing supervisors who harass to also retaliate against employees who oppose the harassment in an effort to dissuade their victims from reporting the conduct. 

The majority argues that it is only addressing retaliation for complaining of discrimination, not harassment (fn. 4) and that it is not expressing an opinion as to whether retaliation for complaining of harassment makes a supervisor liable.  So this window remains slightly open.  But as Justice Moreno shows in his dissent (the majority doesn't discuss the facts of the case at all), the complaints which formed the basis for the retaliation clearly related to harassment.

All in all, not a good day for plaintiffs in FEHA retaliation cases.

Title VII Retaliation Claim Before US Supremes

An interesting Title VII retaliation case is now before the Supreme Court on a cert. petition, to be considered at the Court's conference on January 18.  Crawford v. Metropolitan Government of Nashville and Davidson County, Tenn. asks the Court to decide whether Title VII’s protections against retaliation should extend to employees who participated in an internal investigation of sexual harassment, prior to the filing of any EEOC complaints. 

Interestingly, the Solicitor General is taking the employee's side, and urging the Court to accept cert.

The facts are well laid out in the U.S.'s  amicus brief, available here.  In 2002, Defendant began an internal investigation after the legal department learned of several complaints of inappropriate behavior by its new employee relations director, Dr. Gene Hughes.  During its internal investigation, Defendant interviewed Ms. Crawford, a thirty year employee, who recounted numerous instances of inappropriate behavior by Dr. Hughes including sexual comments and sexual touching.  Shortly after this conversation Ms. Crawford was terminated. 

In an unpublished decision the 6th Circuit held that (a) because the company approached Crawford and not the other way around, it did not satisfy the “opposition” requirement of Title VII and (b) because the investigation was not conducted pursuant to an EEOC charge, Crawford did not satisfy the “participation” requirement of Title VII.

There is ample precedent to support the Supreme Court in granting cert and reversing the 6th Circuit ruling.  For example, courts have stated that the  “opposition” requirement is satisfied even where complaints are made informally regardless of whether a complaint was actually filed.  (See e.g. Kotcher v. Rosa & Sullivan Appliance Ctr., Inc., (2d Cir. 1992) 957 F.2d 59, 65; Rollins v. State of Fla. Dep’t of Law Enforcement, (11th Cir. 1989) 868 F.2d 397, 400.)  Additionally, as the amicus curiae brief argues, Title VII’s objective is to prevent harm, and a rule which limits “participation” as the 6th Circuit does would leave a gap in Title VII’s protection.  The brief also notes that employer internal investigation programs should provide protection to employees who participate the investigation.  (See e.g. Faragher v. City of Boca Raton, (1998) 524 U.S. 775, 807; Kolstad v. American Dental Ass’n., (1999) 527 U.S. 526, 545-546.)

There seems little doubt that the outcome in California would favor the plaintiff here, as this is an area where FEHA's protections are broader than Title VII's.  FEHA makes it unlawful

“[f]or any employer. . . or person to . . . discriminate against any person because the person opposed any practices forbidden under this part or because the person filed a complaint, testified, or assisted in any proceeding under this part.”

(California Government Code Section, 12940(h)). 

California courts hold that the provisions of FEHA are liberally construed to provide employees broad protection against employment discrimination.  (Yanowitz v. L’Oreal (2005) 36 Cal.4th 1028, 1054).  Therefore, FEHA retaliation claims in California are not necessarily bound by the outcome of this Supreme Court case. 

Discussion of this case may also be found at  SCOTUSblog.

                                                                                --- Michael Sachs