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California employment case index

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154 cases

Gupta v. Trustees of California State University: Comparator Evidence and the Similarly-Situated Standard

September 26, 2019
Comparator evidence is admissible in a FEHA case where the plaintiff and the comparator are similarly situated in all relevant respects — similar jobs and similar conduct. Affirming a plaintiff's verdict against San Francisco State University, the First District clarified how Reeves v. MV Transportation governs the admissibility, not merely the weight, of evidence that others outside the protected class were treated more favorably.

ZB, N.A. v. Superior Court

September 12, 2019
The unpaid-wages component of section 558 is not a civil penalty recoverable through PAGA; only the fixed civil penalties ($50/$100 per employee per pay period) are PAGA penalties. Because the unpaid wages are not part of the PAGA claim, the trial court could not compel that portion to arbitration as if it were.

OTO, L.L.C. v. Kho

August 29, 2019
The agreement was both procedurally and substantively unconscionable and therefore unenforceable. The manner of presentation — a take-it-or-leave-it document thrust at a low-wage worker for immediate signature, in dense legalese he was unlikely to understand — was highly oppressive and surprising, and the arbitral…

Galvan v. Dameron Hospital Assn.: Accent and National-Origin Discrimination Under FEHA

June 20, 2019
An employer's stereotyping of a long-tenured Filipino nurse over her accent and English skills was not a neutral performance concern but evidence of national-origin discrimination. The Third District reversed summary judgment for Dameron Hospital, holding that a jury could find the hospital's stated reasons pretextual and that accent-based bias falls squarely within FEHA's protection of national origin.

Ortiz v. Dameron Hospital: Accent-Based Harassment and Supervisor Animus Under FEHA

June 20, 2019
In Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, the Third District reversed summary judgment for a hospital, holding a jury could find a national-origin and age hostile work environment where a supervisor repeatedly mocked older Filipino nurses’ accents, transferred the plaintiff to a unit she was untrained for, and falsely accused her of sleeping on the job. The supervisor’s animus was attributable to the employer under Government Code section 12926, subdivision (d).

Ross v. County of Riverside — Job-Duty Disclosures Are Protected: a Pre-Lawson Building Block

June 20, 2019
The Fourth District reversed summary judgment for the County, holding that a deputy district attorney's internal warnings that a murder prosecution lacked probable cause were protected disclosures under Labor Code section 1102.5 — no express citation of law required, job duties notwithstanding — and that months of testing for a suspected neurological disease raised a triable issue of FEHA disability.

Laker v. Board of Trustees of CSU: When a Retaliation Claim Does Not Arise From Protected Speech

February 28, 2019
A tenured professor sued CSU for retaliation and defamation after the university launched investigations and made statements about him. CSU moved to strike under the anti-SLAPP statute. The Court of Appeal held the retaliation claim did not “arise from” protected speech merely because protected activity sat in the background, and applied Baral v. Schnitt to parse the pleading into its component claims — striking only the discrete defamation allegations that were themselves based on protected statements.

Ward v. Tilly’s: Reporting-Time Pay for On-Call / Call-In Shifts

February 4, 2019
Tilly’s required retail workers to phone the store exactly two hours before every on-call shift — under threat of written discipline — and paid nothing if the answer was ‘don’t come in.’ Division Three held, 2–1, that this triggers Wage Order 7 reporting-time pay: ‘reporting for work’ means presenting oneself as ordered, and the employer’s own directions define the manner, whether that is walking through the door, logging on remotely, or making a mandatory call. The holding is deliberately tied to the two-hour call-in regime, the retroactivity question was expressly left open, and Justice Egerton’s partial dissent — built on 18,000 pages of IWC history — supplies the employer playbook. Review was denied; Ward remains the leading California authority on call-in scheduling.

AMN Healthcare, Inc. v. Aya Healthcare Services, Inc.

November 1, 2018
The employee-non-solicitation provision was void under section 16600 because it restrained the individual defendants — recruiters whose profession is recruiting and placing nurses — from engaging in their chosen profession; applying Edwards, the court declined to use the older “reasonableness” analysis and held such…

Caldera v. Department of Corrections & Rehabilitation: Harassment Need Only Be Severe or Pervasive

July 9, 2018
In Caldera v. Department of Corrections & Rehabilitation (2018) 25 Cal.App.5th 31, a correctional officer who stutters proved that a supervisor mocked his speech impediment in front of others at least a dozen times over roughly two years, and a jury awarded $500,000 for FEHA disability harassment. The Court of Appeal affirmed the liability finding, reaffirming that harassment need only be severe OR pervasive — not both — and that because the conduct occurred on “more than one isolated occasion,” the plaintiff was not required to prove a physical assault or threat. On the employer's cross-appeal, the court reversed the trial court's order granting a new trial on damages, because the court failed to file the statement of reasons within the ten days Code of Civil Procedure section 657 requires, rendering the order a nullity.

Meeks v. AutoZone: Sexual Harassment Evidence and Evidence Code Section 1106

June 21, 2018
In Meeks v. AutoZone, the Fourth District reversed defense verdicts in a FEHA sexual harassment case, holding that a cluster of evidentiary rulings cumulatively skewed a credibility contest against the plaintiff. The court drew a usable line under Evidence Code section 1106: a plaintiff’s sexually charged banter directed at the harasser is admissible under subdivision (b), but a privately posted photograph of her tattoo — never shared “with” the harasser — remains barred by subdivision (a). It also confirmed that a harasser puts his intent in issue, and opens the door to me-too evidence, simply by claiming he treated everyone the same.

Wassmann v. South Orange County CCD: The Continuing-Violation Doctrine and Permanence at Termination

June 12, 2018
In Wassmann v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825, the Court of Appeal affirmed summary judgment against a dismissed community-college librarian, holding her FEHA discrimination and harassment claims time-barred. Applying the three-part continuing-violation test from Richards v. CH2M Hill, the court held the doctrine could not save the claims because the pre- and post-limitations acts were “not at all similar” and the employer’s conduct “acquired a degree of permanence” when her employment was terminated — and post-dismissal acts of a neutral administrative law judge could not be imputed to the employer.

Epic Systems Corp. v. Lewis

May 21, 2018
Arbitration agreements providing for individualized proceedings — including class- and collective-action waivers in the employment context — are enforceable under the FAA, and the NLRA does not override the FAA or render such agreements unlawful; courts must enforce the agreements according to their terms.

Hernandez v. Rancho Santiago: Finite Leave That Forces a Firing Is No Accommodation

May 3, 2018
A unanimous Court of Appeal affirmed a $723,746 judgment for a probationary community-college employee terminated while on approved industrial-injury leave. Granting the leave was not a reasonable accommodation because it led directly to her termination; FEHA and Education Code section 88013 let the district toll, not forfeit, her probation, and its conduct showed no good-faith interactive process.

Alvarado v. Dart Container Corp.

March 5, 2018
For a flat-sum bonus like the attendance bonus here, the bonus is divided by the number of non-overtime (straight-time) hours the employee actually worked — not by total hours including overtime — to determine the per-hour value added to the regular rate; this yields a higher overtime rate, more protective than the…

Simers v. Los Angeles Times: Discriminatory Motive Does Not Equal Constructive Discharge

January 5, 2018
In Simers v. Los Angeles Times Communications LLC (2018) 18 Cal.App.5th 1248, a celebrated sports columnist won a jury verdict on FEHA age and disability discrimination and constructive discharge, recovering more than $7 million. The trial court let the discrimination liability stand but granted JNOV on the constructive-discharge claim and ordered a new trial limited to damages. The Court of Appeal affirmed all of the orders. Even where age or disability is a substantial motivating reason for a demotion, an employee who resigns in response to standard disciplinary procedures has not suffered a constructive discharge absent “unusually aggravated” conditions or a “continuous pattern of mistreatment.” And because the noneconomic award could not be apportioned between the surviving discrimination theory and the vacated constructive-discharge theory, a new trial limited to damages — not liability — was the proper remedy.

Cornell v. Berkeley Tennis Club: Obesity as a Protected Disability and Disability Harassment under FEHA

December 21, 2017
A 15-year Berkeley Tennis Club employee fired after a recorder was found at a board meeting sued for FEHA disability discrimination, harassment, and more, alleging her severe obesity is a protected physical disability. The Court of Appeal held the Club, as summary-adjudication movant, never carried its initial burden of showing Cornell could not prove a physiological cause for her obesity, reinstating her discrimination, harassment, and defamation claims while affirming dismissal of accommodation and retaliation.

Whitehall v. County of San Bernardino: Administrative Leave as an Adverse Employment Action

November 15, 2017
In Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, a county social worker was placed on administrative leave days after telling the juvenile court that her superiors had directed her to submit misleading evidence; the County’s anti-SLAPP motion to strike her whistleblower suit was denied. Affirming, the Court of Appeal held the leave — unrequested, investigative, paired with a decision to terminate her, and removing her from her assigned case — was an adverse employment action under Yanowitz’s contextual materiality standard, so the claim was not a meritless SLAPP.

M.F. v. Pacific Pearl Hotel Management: Employer Liability for Harassment by a Nonemployee

October 26, 2017
Reversing a judgment of dismissal entered after a demurrer was sustained without leave to amend, the Court of Appeal held that a hotel housekeeper stated viable FEHA claims for sexual harassment by a nonemployee (Gov. Code, § 12940, subd. (j)(1)) and for failure to prevent harassment (id., subd. (k)) where she alleged she was assaulted on the employer's premises by a drunk trespasser the employer knew or should have known was wandering the property and aggressively propositioning other housekeepers. Whether the employer's response was adequate is a question of fact unsuitable for resolution on demurrer.

Diego v. City of Los Angeles: When Pretext Is Not Enough to Prove Discrimination

September 14, 2017
A FEHA disparate-treatment verdict collapsed where the only proof of racial animus was the race of the officers’ shooting victim — not the officers themselves — and the City’s risk-management rationale stood unrebutted. The Court of Appeal reversed with directions to enter judgment for the City.

Light v. Department of Parks & Recreation

August 8, 2017
An employee’s refusal to participate in conduct she reasonably believes is unlawful under the FEHA — including refusing to go along with retaliation against a coworker — can constitute protected activity, and threats or intimidation may qualify as a materially adverse employment action supporting a retaliation claim;…

Williams v. Superior Court

July 13, 2017
A PAGA plaintiff is presumptively entitled to discover the identities and contact information of other aggrieved employees statewide, subject to the employees’ privacy interests (which may be protected through a Belaire-West opt-out notice) rather than to a heightened threshold showing of merit before discovery.

Husman v. Toyota Motor Credit Corp.: Sexual-Orientation Discrimination and the Substantial-Motivating-Factor Standard

June 21, 2017
A gay executive's evidence that his sexual orientation was a substantial motivating factor in his termination was enough to revive his FEHA discrimination claim, even though his parallel retaliation theory failed. The Second District applied Harris v. City of Santa Monica's causation and same-decision framework (CACI Nos. 2500, 2505, 2512) to a sexual-orientation disparate-treatment case.

Featherstone v. Southern California Permanente: Rescinding a Resignation and Employer Knowledge of Disability

April 19, 2017
When an employee resigns and the employer promptly accepts, can she undo it by later revealing she was disabled at the time? In Featherstone, the Court of Appeal said no — refusing to let a former employee rescind a voluntary, accepted resignation is not an adverse employment action under FEHA, and an accommodation duty never arises for a disability the employer did not know about when the resignation was accepted.

McGill v. Citibank, N.A.

April 6, 2017
A provision in a predispute arbitration agreement that waives the right to seek public injunctive relief in any forum is contrary to California public policy and unenforceable (the “McGill rule”); and because that rule applies to contracts generally and does not single out arbitration, the FAA does not preempt it.

Atkins v. City of Los Angeles: Essential Functions and Reasonable Accommodation for Injured Police Recruits

February 14, 2017
Five LAPD recruits were injured during Academy training and parked in the Department’s light-duty “Recycle” program until, mid-recovery, the City imposed a new six-month cutoff and forced them out. Atkins holds that the recruits could not win a FEHA disability-discrimination claim — they could not perform a recruit’s physically demanding essential functions, and FEHA never requires eliminating an essential function — yet could win a failure-to-accommodate claim, because they had actually performed the Recycle duties and the City’s own longstanding practice made continued reassignment reasonable. The court also vacated lifetime-career front-pay damages as speculative.

Bareno v. San Diego Community College District

January 13, 2017
In Bareno v. San Diego Community College District (2017) 7 Cal.App.5th 546, the Fourth District reversed summary judgment for the employer on a CFRA retaliation claim, holding that the 30-day advance-notice rule does not apply when the need for medical leave is unforeseeable — notice need only be given “as soon as practicable” — and that whether an employee sufficiently requested leave and supplied adequate certification is a question of fact. The employer’s decision to treat the employee’s medical absences as a “voluntary resignation,” coming virtually immediately after she sought leave, raised triable issues of retaliatory causation.

Dinslage v. City and County of San Francisco: Advocacy Is Not Protected Activity

November 9, 2016
When a recreation-program manager was laid off after publicly opposing the City's cuts to disabled-community services, he sued for FEHA retaliation. The Court of Appeal affirmed summary judgment for the City, holding that generalized advocacy for the disabled public is not “protected activity” under Government Code section 12940, subdivision (h): the opposition clause reaches only opposition to conduct an employee reasonably believes is unlawful employment discrimination against an employee or applicant, not opposition to policy choices affecting the public at large.

Moore v. Regents of University of California: Direct Evidence and McDonnell Douglas

June 2, 2016
A long-serving employee laid off after her supervisor allegedly called her a “liability to the department” in light of her heart condition sued for perceived-disability discrimination, failure to accommodate, CFRA violations, and FEHA retaliation. The Court of Appeal reversed summary judgment on the disability-related claims — the supervisor's remark plus the employer's departure from its own seniority and recall policies raised triable issues of pretext — but affirmed on retaliation, holding that a pre-2016 accommodation request was not, by itself, “protected activity.”

Davis v. Farmers Ins. Exchange: The Harris Same-Decision Defense and the Common Law Tort

March 28, 2016
In Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, the Court of Appeal held that the mixed-motive, same-decision framework adopted in Harris v. City of Santa Monica for FEHA disparate-treatment claims applies equally to a common law wrongful-termination-in-violation-of-public-policy claim grounded in the policy against age discrimination — even though the plaintiff pleaded no FEHA claim. Because the jury found age was a substantial motivating reason but that Farmers would have fired Davis anyway, the same-decision finding left no damages, no equitable relief, and no fees; the court nonetheless reversed a directed verdict on his wage claim, holding the employer bears the burden of proving paycheck deductions lawful.

Soria v. Univision Radio Los Angeles, Inc.

January 1, 2016
Soria v. Univision Radio Los Angeles, Inc.A detailed application of the summary-judgment framework to FEHA disability claims: triable issues on the employer’s knowledge of the disability, pretext, and the interactive process defeated summary judgment.Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570Parallel citation: 210 Cal.Rptr.3d 59. Court of Appeal of California, Second Appellate […]

Wallace v. County of Stanislaus

January 1, 2016
Wallace v. County of Stanislaus A FEHA disability-discrimination plaintiff need not prove the employer acted out of animosity or ill will; it is enough that the disability was a “substantial motivating reason” for the adverse action — even a well-intentioned but mistaken one. Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109 Parallel citation: 199 […]

Jumaane v. City of Los Angeles: Pretext, the Continuing-Violation Doctrine, and Disparate Impact

November 10, 2015
A Black firefighter's discrimination verdict collapsed because he could not show the City's reasons were pretextual or marshal the statistical proof a disparate-impact theory requires, and the continuing-violation doctrine could not rescue time-barred claims. The Second District reversed with directions to enter judgment for the City, illustrating the demanding pretext and impact standards behind CACI Nos. 2502, 2505, and 2508.

Higgins-Williams v. Sutter Medical Foundation: Inability to Work Under a Particular Supervisor Is Not a FEHA Disability

May 26, 2015
An employee who cannot work under a particular supervisor because of anxiety and stress tied to that supervisor’s ordinary oversight has no disability under FEHA. In Higgins-Williams, the Third District affirmed summary judgment for Sutter on that single ground, which dissolved the plaintiff’s discrimination, accommodation, retaliation, and wrongful-termination claims, while remanding only the cost award under Williams v. Chino Valley.

Williams v. Chino Valley Independent Fire Dist.

May 4, 2015
Government Code section 12965(b) governs both fee and cost awards in FEHA actions and makes them discretionary under the asymmetric Christiansburg standard: a prevailing plaintiff ordinarily recovers fees and costs, but a prevailing defendant may recover them only if the action was objectively frivolous, unreasonable,…

Young v. United Parcel Service: The PDA Disparate-Treatment Accommodation Framework

March 25, 2015
UPS accommodated drivers hurt on the job, drivers with ADA disabilities, and drivers who lost their DOT certifications — but told pregnant driver Peggy Young she could not work under a 20-pound lifting restriction. The Supreme Court vacated summary judgment and built the governing framework for PDA accommodation claims: show the employer accommodated others similar in ability to work, and a jury may infer discrimination if the policies significantly burden pregnant workers and the employer’s reasons are not strong enough to justify it. In California, where the PDLL and FEHA impose affirmative accommodation duties, Young is the federal floor — essential in pure Title VII postures, rarely the lead theory at home.

Dickson v. Burke Williams: Failure to Prevent Requires an Underlying FEHA Violation

March 6, 2015
A massage therapist won a FEHA verdict against her spa employer for failing to prevent customer sexual harassment and sex discrimination — even though the same jury found the harassing conduct was not severe or pervasive and that she suffered no adverse employment action. The Court of Appeal reversed, holding that a claim under Government Code section 12940, subdivision (k) is wholly derivative: it cannot stand without an underlying, actionable FEHA violation. Sharpening Trujillo, the court held it is the absence of actionable harassment — not the lack of any harassing conduct — that defeats the prevention claim, and directed entry of judgment for the employer.

Richey v. AutoNation, Inc.

January 29, 2015
The arbitrator’s award was upheld. Under the narrow standard of review governing arbitration awards, the court declined to decide whether the “honest belief” defense applies to CFRA claims; even assuming the arbitrator erred in invoking it, the error did not deprive the employee of an unwaivable statutory right, so…

Nealy v. City of Santa Monica: Essential Functions, Reassignment, and the Interactive Process

January 21, 2015
A disabled Santa Monica refuse worker argued his employer could have kept him on by stripping heavy lifting from the job or holding a position open. The Court of Appeal disagreed, holding that eliminating a true essential function is not a reasonable accommodation, that reassignment is required only where an actual qualifying vacancy exists, and that a bare request for accommodation is not protected activity for a retaliation claim.

Satyadi v. West Contra Costa Healthcare District

December 31, 2014
Satyadi v. West Contra Costa Healthcare District An employee need not exhaust the Labor Commissioner’s administrative remedy before bringing a civil whistleblower-retaliation action; the 2013 enactment of Labor Code sections 244 and 98.7, subdivision (g), merely clarified existing law. Satyadi v. West Contra Costa Healthcare District (2014) 232 Cal.App.4th 1022 Parallel citation: 182 Cal.Rptr.3d 21. […]

Swanson v. Morongo Unified School Dist.

November 26, 2014
In Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, the Court of Appeal reversed summary judgment for a school district sued by a breast-cancer-survivor teacher whose contract was not renewed. The court held that FEHA imposes a continuous, good-faith duty to engage in the interactive process under Government Code section 12940, subdivision (n) — not satisfied by a single gesture — and that reasonable accommodation can require reassignment to a vacant position under subdivision (m), implicating CACI Nos. 2541 and 2546.

Patterson v. Domino’s Pizza, LLC

August 28, 2014
A franchisor is not ordinarily the employer of its franchisee’s employees and is not vicariously liable for a franchisee-supervisor’s harassment unless the franchisor has retained or assumed general control over the relevant day-to-day aspects of the franchisee’s employment practices; a comprehensive operating system…

Peabody v. Time Warner Cable, Inc.

July 14, 2014
An employer satisfies the minimum-earnings prong of the commissioned-employee exemption only in those pay periods in which it actually pays the required minimum earnings; it may not attribute commission wages paid in one pay period to other pay periods to manufacture compliance (59 Cal.4th at p. 664).

Ayala v. Antelope Valley Newspapers, Inc.

June 30, 2014
For certification, the key question is whether the hiring entity’s right to control the manner and means of the work — the principal test of employment — can be established through common proof (such as the standard contract and uniform policies), not whether each worker was in fact controlled to the same degree; the…

Salas v. Sierra Chemical Co.: After-Acquired Evidence and Unclean Hands Limit, But Do Not Bar, FEHA Remedies

June 26, 2014
In Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, a production worker who had obtained his job with a false Social Security number sued under FEHA for disability discrimination and retaliation; after litigation began, the employer discovered the fraud and won summary judgment on after-acquired-evidence and unclean-hands theories. The California Supreme Court reversed. It held that Senate Bill No. 1818 (Gov. Code § 7285; Civ. Code § 3339; Lab. Code § 1171.5) extends FEHA's remedies to workers “regardless of immigration status,” and that federal immigration law (IRCA, as read in Hoffman Plastic) does not preempt those state remedies except as to lost-pay damages for the period after the employer discovers the worker's ineligibility. Neither after-acquired evidence nor unclean hands is a complete defense; both bear on the remedy, not on liability.

Iskanian v. CLS Transportation: PAGA Waivers Unenforceable, Class Waivers Enforceable

June 23, 2014
Iskanian v. CLS Transportation (2014) 59 Cal.4th 348 holds that class-action waivers in employment arbitration agreements are enforceable after Concepcion (abrogating Gentry), but a predispute waiver of a representative PAGA action is contrary to public policy and not preempted by the FAA, because a PAGA claim belongs to the state.

Kim v. Konad USA Distribution: FEHA Exhaustion Is Not Jurisdictional — and Can Be Forfeited

June 12, 2014
In Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, the Court of Appeal affirmed a $60,000 bench-trial judgment for a sexually harassed employee, holding that FEHA’s administrative-exhaustion requirement is “jurisdictional” only in the loose, prudential sense and does not affect the trial court’s fundamental subject matter jurisdiction. Because the defendants waited until after the case was submitted to assert non-exhaustion, they forfeited the defense; and because exhaustion is not truly jurisdictional, the court could consider post-trial materials confirming the plaintiff had in fact exhausted. The court also held a harassment claim lies against an employer of any size.

Rosenfeld v. Abraham Joshua Heschel Day School: Avoidable Consequences Beyond Harassment

May 28, 2014
In Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886, the Court of Appeal affirmed a defense verdict in an age-discrimination suit and held that an employer may put before the jury, on mitigation of damages, the employee’s failure to invoke the employer’s internal grievance procedure — extending the FEHA avoidable-consequences doctrine of State Dept. of Health Services v. Superior Court beyond the hostile-environment harassment context in which it arose.

Serri v. Santa Clara University: Personnel-Management Decisions Are Not Harassment

May 28, 2014
In Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, the Court of Appeal affirmed summary judgment for the University and reaffirmed the FEHA line between discrimination and harassment: a supervisor’s personnel-management decisions — who attends an employee’s meetings, how they are run, and accusations of dishonesty or poor performance — are not harassment under Reno v. Baird and Janken, even if discriminatory; the few stray remarks the plaintiff cited were neither offensive nor pervasive. The court also held after-acquired expert evidence of no adverse consequences did not raise a triable issue on pretext.

Lewis v. City of Benicia: Same-Sex Sexual Harassment under FEHA

March 26, 2014
A heterosexual male volunteer at a city water plant sued under FEHA for same-sex harassment by two supervisors. The First District reversed summary judgment for one supervisor — gifts, lunches, suggestive remarks, and pornographic images supported an inference of genuine sexual interest and pervasiveness — while affirming for the other. Finding sexual interest on the record, the court expressly declined to decide the effect of the new statute providing that harassing conduct “need not be motivated by sexual desire.”

Cheal v. El Camino Hospital: The Limits of the Business-Judgment Rule on Summary Judgment

January 31, 2014
In Cheal v. El Camino Hospital (2014) 223 Cal.App.4th 736, the Court of Appeal reversed summary judgment for the hospital in a FEHA age-discrimination suit, holding triable issues existed on whether the 61-year-old dietary technician performed satisfactorily and on discriminatory animus. Although “satisfactory performance” is ordinarily within the employer’s sole discretion, an employer cannot conclusively establish the governing standard merely by asserting the plaintiff fell short; the hospital’s own written policies anticipated and tolerated the errors charged, and the supervisor’s recorded admission that she favored younger workers was admissible against interest.

Taylor v. Nabors Drilling USA, LP: Same-Sex Harassment of a Heterosexual Man Is Because of Sex

January 13, 2014
A male oil-rig floorhand was relentlessly gay-baited, urinated on, and propositioned by his supervisors. The Court of Appeal held these sex-based attacks on his heterosexual identity were harassment because of sex under the FEHA — no proof of the harassers' sexual desire required — endorsing Singleton, rejecting Kelley, and holding that a special verdict rendered defective by a drafting typo is subject to harmless-error review.

Thornbrough v. Western Placer: The Same-Decision Defense After Harris, Without Conceding Mixed Motives

December 23, 2013
A school-district maintenance supervisor, fired after a sustained pattern of insubordination, computer misuse, and retaliation against co-workers, claimed his discharge was really payback for whistleblowing about District construction projects. The Third District affirmed the denial of his mandamus petition, applying the Supreme Court's then-new decision in Harris v. City of Santa Monica to hold that an employer may invoke the same-decision showing without conceding mixed motives, and that untainted misconduct alone justified termination — making the protected-activity question unnecessary to decide.

Vasquez v. Franklin Management: Constructive Discharge Is a Jury Question, and the IIED Limit

December 3, 2013
A maintenance technician paid $10 an hour and never reimbursed for the heavy work mileage he was ordered to drive in his own truck could state a claim for constructive discharge in violation of public policy, where the unreimbursed expense pushed his effective pay below the minimum wage; whether conditions were intolerable was normally a jury question, so the demurrer should not have been sustained. The IIED count, however, was barred by workers' compensation exclusivity.

Sonic-Calabasas A, Inc. v. Moreno

October 17, 2013
Concepcion preempts a categorical, arbitration-specific rule that a Berman-hearing waiver is per se unconscionable; but generally applicable unconscionability doctrine survives, and an arbitration agreement remains unenforceable if it is unreasonably one-sided. The court concluded this agreement’s waiver was markedly…

Rope v. Auto-Chlor System of Washington, Inc.: FEHA Associational-Disability Discrimination

October 16, 2013
In Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, the Second District held that FEHA forbids firing a nondisabled employee because of his association with a disabled relative, sustaining an expense-theory associational claim where the employer allegedly fired the plaintiff to avoid paying for organ-donation leave for his disabled sister. The court affirmed dismissal of the retaliation, Labor Code, PAGA, and direct-disability counts while reinstating the associational, failure-to-prevent, and public-policy claims.

Vance v. Ball State University: Who Is a “Supervisor” — Title VII’s Narrow Rule vs. FEHA’s Broader One

June 24, 2013
The Supreme Court held 5-4 that an employee is a “supervisor” for Title VII vicarious-liability purposes only if empowered to take tangible employment actions — hire, fire, demote, promote, transfer, or discipline. An employee who merely directs daily work is a co-worker, so the employer is liable only for negligence. The decision does not govern California’s FEHA, which defines “supervisor” more broadly and imposes strict liability for supervisor harassment.

Acuna v. San Diego Gas & Electric: When the Limitations Clock Starts on a FEHA Termination

June 19, 2013
In Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, reviewing a sustained demurrer, the Court of Appeal held the plaintiff’s FEHA disability- and race-discrimination claims time-barred but reversed on her retaliation and wrongful-termination claims, holding that the section 12960 clock for a discharge runs from the actual termination — not from when the retaliatory motive arose — and that the employer, which controlled the termination date, controlled the accrual trigger. On the accommodation claims, continuing-violation tolling ended once the employer’s refusal reached a degree of permanence.

McCoy v. Pacific Maritime Assn.: Retaliation Is for the Jury

May 14, 2013
After a vessel-planner trainee complained, a confidential settlement was leaked and coworker hostility followed; the jury found retaliation, but the trial court entered JNOV. The Court of Appeal reversed the JNOV, holding that actions for retaliation are “inherently fact-driven” and that the jury, not the court, decides whether the conduct materially altered the plaintiff's employment — while affirming the alternative new-trial order on grounds of attorney misconduct, surprise, and excessive damages.

Bluford v. Safeway, Inc.

May 8, 2013
Rest periods must be separately compensated and cannot be folded into a piece-rate or activity-based pay formula; because Safeway’s uniform pay system did not separately pay for rest periods, common issues predominated and the class should have been certified (216 Cal.App.4th at p. 866).

Gonzalez v. Downtown LA Motors, LP

March 6, 2013
Piece-rate employees are entitled to separate hourly compensation for time spent waiting for repair work or performing other nonrepair tasks directed by the employer during their work shifts; piece-rate earnings cannot be averaged across that nonproductive time to satisfy the minimum-wage obligation (215 Cal.App.4th…

Sanchez v. Swissport, Inc.: PDLL Leave Is a Floor, Not a Ceiling, on FEHA Accommodation

February 21, 2013
In a case of first impression, the Court of Appeal held that an employee disabled by a high-risk pregnancy who was terminated after exhausting the four months of leave guaranteed by the Pregnancy Disability Leave Law may still state a FEHA claim, because the PDLL augments rather than supplants the independent reasonable-accommodation duty of Government Code section 12940, subdivision (m). A finite leave exceeding four months can be a reasonable accommodation, and the plaintiff's allegations cleared demurrer.

McGrory v. Applied Signal Technology: No Shield for Lying in an Investigation

January 24, 2013
A manager fired after an internal investigation into a subordinate's harassment complaint sued for discrimination and retaliation. Affirming summary judgment for the employer, the Court of Appeal held that Government Code section 12940, subdivision (h) does not shield an employee from termination or discipline for lying or withholding information during the employer's internal investigation — such dishonesty and non-cooperation are unprotected and supply a legitimate, nondiscriminatory ground to terminate an at-will employee.

Furtado v. State Personnel Board: The Limits of Reassignment as Reasonable Accommodation

January 7, 2013
A correctional lieutenant who lost the use of his left arm could no longer use a baton or subdue inmates. In Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, the Court of Appeal held that FEHA's reassignment duty, though affirmative, does not require an employer to waive an essential function or create an administrative position that does not exist; medical demotion to a position the employee could perform was proper.

Olofsson v. Mission Linen Supply

December 13, 2012
In Olofsson v. Mission Linen Supply (2012) 211 Cal.App.4th 1236, the First District held that an employer’s regulatory duty to respond to a CFRA leave request within ten calendar days is not a duty to grant or deny it within that window. Affirming a defense judgment, the court ruled substantial evidence supported findings that the employer neither misrepresented that a route driver’s family leave was approved nor stayed silent when it had a duty to speak, even though it disclosed his ineligibility — 175 to 176 hours short of the 1,250-hour threshold — only the day before he left to care for his mother.

Lui v. City and County of San Francisco: When Rarely-Used Strenuous Duties Are Still Essential Functions

December 11, 2012
In Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, the First District affirmed a defense judgment, holding that strenuous patrol duties — forcible arrests, pursuing suspects, emergency response — are essential functions of administrative police positions because the Department must be able to deploy every full-duty officer during mass mobilizations, even if those situations are infrequent. A disabled officer who cannot perform those duties is not a qualified individual under FEHA, and the employer need not create a permanent light-duty post.

Veronese v. Lucasfilm: The Business-Judgment Instruction and Reversible Instructional Error in a Pregnancy-Discrimination Case

December 10, 2012
Reversing a $113,830 pregnancy-discrimination verdict against Lucasfilm, the First District held that a FEHA defendant is entitled, on request, to a “business judgment” jury instruction — the rule that an employer may act on a wrong, unwise, or mistaken but nondiscriminatory reason — and that an abstractly correct “no fetal-hazard defense” instruction untethered to any defense actually in the case was misleading error. The cumulative instructional errors required a retrial.

Fitzsimons v. California Emergency Physicians: A Partner’s Right to Sue for Retaliation

May 16, 2012
A physician-partner alleged she was stripped of her regional directorship after reporting that CEP officers had sexually harassed the partnership's employees. The trial court dismissed her claim because, as a partner, she was not an “employee.” The Court of Appeal reversed, holding that FEHA's retaliation provision protects “any person” who opposes forbidden practices — so a partner who opposes her partnership-employer's harassment of its employees is protected from retaliation, notwithstanding Jones v. Lodge at Torrey Pines.

Kirby v. Immoos Fire Protection, Inc.

April 30, 2012
Neither Labor Code section 1194 nor section 218.5 authorizes an award of attorney fees to a party that prevails on a section 226.7 claim; such claims are not actions for the nonpayment of minimum wages or overtime (§1194) and are not the kind of nonpayment-of-wages action that triggers §218.5 fee-shifting, so each…

Rehmani v. Superior Court: Coworker Harassment and the Employer-Negligence Standard

March 29, 2012
A Muslim engineer born in Pakistan raised triable claims that his employer was liable for a hostile work environment created by Indian coworkers. Because the harassers were nonsupervisory, liability turned on negligence — whether the employer knew or should have known and failed to take corrective action. The Court of Appeal granted a writ reversing summary adjudication of the national-origin and religion harassment claims.

Joaquin v. City of Los Angeles: The Honest-Belief Defense to Retaliation

January 23, 2012
An LAPD officer who was disciplined after the Department concluded he had fabricated a sexual-harassment complaint won a jury verdict for retaliation. The Court of Appeal reversed, holding that an employer does not retaliate under FEHA when it disciplines an employee based on a genuine, good-faith determination that the harassment complaint was false — and that an independent, de novo adjudication of the charges insulates the resulting discipline from claims that animus tainted the underlying investigation.

Mize-Kurzman v. Marin Community College Dist. — Defining “Disclosure” (and What Kolla’s Later Rejected)

January 10, 2012
The First District reversed a defense verdict for instructional error, holding a whistleblower's motive irrelevant and reasonable-belief reports of unlawful policies protected even where debatable — but its further rule that reporting “publicly known” information is not a disclosure was later rejected by the Supreme Court in Kolla's, and the article maps what survives.

Harris v. Superior Court

December 29, 2011
Courts may not treat the administrative/production worker dichotomy as a dispositive test for the administrative exemption; the exemption must be analyzed under the language of the applicable IWC wage order and governing regulations, considering the actual work performed, rather than a rigid dichotomy.

Jaramillo v. County of Orange

November 8, 2011
Jaramillo v. County of Orange A peace officer’s warnings to his own boss about the boss’s illegal conduct are protected whistleblowing under Labor Code section 1102.5; blanket POBRA waivers are invalid; and after-acquired evidence of unrelated crimes does not retroactively defeat a wrongful-discharge backpay award. Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811 Parallel […]

Earl v. Nielsen Media Research — Comparator Age Pretext

September 26, 2011
Nielsen fired Christine Earl, 59, for recording the wrong house address on a recruitment form, citing her history of policy violations. The Ninth Circuit reversed summary judgment on her FEHA age discrimination and wrongful termination claims: recruiters aged

Rogers v. County of Los Angeles

August 16, 2011
The Court of Appeal reversed a $356,000 CFRA judgment, holding that the right to reinstatement to the same or a comparable position expires at the end of the 12-week protected leave — so an employee who returned after 19 weeks had no interference claim — and that her retaliation claim failed for lack of evidence rebutting the County’s reorganization rationale.

Pantoja v. Anton: Me-Too Evidence and Harassment Because of Sex

August 9, 2011
After a Kern County jury returned a defense verdict, the Court of Appeal reversed, holding that “me-too” evidence of harassment of other women — even outside the plaintiff’s presence — is admissible under Evidence Code section 1101, subdivision (b), to prove discriminatory intent and motive, and that harassment “because of sex” requires bias against the plaintiff’s gender, not sexual desire.

Kelley v. The Conco Companies: Employer Liability for Coworker Retaliation

June 6, 2011
An ironworker apprentice subjected to graphic same-sex verbal abuse complained, then faced a campaign of coworker hostility and lost work opportunities. The Court of Appeal affirmed summary judgment on the sexual-harassment claim (the conduct was not shown to be “because of sex”) but revived the retaliation claim, holding that an employer may be liable under FEHA when it knows or should know that coworkers are punishing an employee for protected complaints and fails to take reasonable steps to stop them.

AT&T Mobility LLC v. Concepcion

April 27, 2011
The FAA preempts the Discover Bank rule. A state rule that conditions the enforceability of an arbitration agreement on the availability of classwide arbitration interferes with the fundamental attributes of arbitration and stands as an obstacle to the FAA’s objective of enforcing arbitration agreements according to…

Cuiellette v. City of Los Angeles: Light-Duty Posts Define the Essential-Functions Inquiry

April 22, 2011
A disabled LAPD officer placed in a permanent administrative light-duty post under the department's longstanding accommodation policy is a qualified individual under FEHA if he can perform that post's essential functions — not the field duties of a sworn officer generally. Removing him because a workers' compensation administrator rated him 100% disabled violated Government Code section 12940, subdivision (m). The Court of Appeal affirmed a $1,571,500 judgment.

Wills v. Superior Court

April 13, 2011
The FEHA protects an employee’s disability status, not threatening or violent conduct; an employer may discipline or terminate an employee for making workplace threats even if the threats are caused by a disability, and doing so is not unlawful disability discrimination (195 Cal.App.4th at p. 147).

Staub v. Proctor Hospital: “Cat’s Paw” (Subordinate-Bias) Liability Under USERRA and Title VII

March 1, 2011
The Supreme Court’s foundational “cat’s paw” decision: an employer is liable when a biased supervisor performs an act intended to cause an adverse employment action that is a proximate cause of the ultimate decision — even if the formal decisionmaker had no discriminatory animus. A decisionmaker’s “independent investigation” does not automatically break the causal chain, especially when it credits the biased actor’s report without independently confirming the action was justified.

Holmes v. Petrovich: Adverse Employment Action, Pregnancy Discrimination, and Privilege on a Company Computer

January 13, 2011
The Third District affirmed summary adjudication against a pregnant executive assistant whose two-month tenure ended in resignation after a pointed email exchange about her maternity-leave dates, holding the conduct neither severe nor pervasive enough to be FEHA harassment and not an adverse employment action under Yanowitz. In a holding of lasting evidentiary importance, the court also held that emails Holmes sent her attorney on the company computer — after being warned it was monitored and not private — were not confidential under Evidence Code section 952 and so were not privileged.

Pineda v. Bank of America, N.A.

November 18, 2010
Section 203(b) contains a single, three-year limitations period governing all actions for section 203 penalties, regardless of whether the penalty claim is accompanied by a claim for unpaid final wages; and the penalties may be recovered even though the underlying wages were eventually paid.

Sandell v. Taylor-Listug, Inc.: Prima Facie Inferences, Pretext, and Age-and-Disability Disparate Treatment

September 7, 2010
A salesman who suffered a stroke and was fired raised triable issues of age and disability discrimination, even though the same people who hired him made the decision. The Fourth District reversed summary judgment, holding that cane use met the disability threshold, that unexplained employer actions can supply the prima facie inference, and that a strong same-actor inference is still only an inference for the jury (CACI Nos. 2500, 2540, 2570).

Reid v. Google, Inc.

August 5, 2010
Evidentiary objections made in writing before the summary-judgment hearing are preserved for appeal even if the trial court does not expressly rule on them. And California does not adopt a rigid stray-remarks doctrine: discriminatory remarks are not categorically irrelevant but must be considered, with all the…

Reeves v. MV Transportation, Inc.: When a Qualifications Comparison Supports an Inference of Discrimination

July 9, 2010
A plaintiff who relies on his superior qualifications to prove discrimination must show a substantial disparity — a juror who finds the comparison merely 'close' will not ordinarily infer bias. Affirming summary judgment, the First District surveyed the federal relative-qualifications cases and held that the gap between the rejected applicant and the person hired was not wide enough to raise a triable issue.

Chavez v. City of Los Angeles

January 14, 2010
A trial court has discretion to deny or reduce a FEHA fee award when the plaintiff’s recovery is modest and the case could have been litigated as a limited civil case; where the fees sought are grossly disproportionate to a minor recovery (here, the judgment could have been rendered in a limited civil case), the court…

Carrisales v. Department of Corrections: No Personal Liability for Coworker Harassment (Superseded)

December 9, 1999
The California Supreme Court held that a nonsupervisory coworker could not be held personally liable under FEHA for harassing a fellow employee: although former Government Code section 12940 prohibited “any … person” from harassing an employee, the statute as a whole reached only the employer's failure to take corrective action, not the coworker's underlying conduct. The court pointed the policy question to the Legislature — which responded the next year by adding Government Code section 12940, subdivision (j)(3), making individual employees personally liable for their own harassment and abrogating the holding.

Iwekaogwu v. City of Los Angeles — Proving Retaliatory Motive with Direct and Comparative Evidence

October 13, 1999
Affirming a remitted $500,000 FEHA retaliation judgment for a Nigerian-American harbor-department engineer, the Second District held that pretext may be shown by direct evidence of decisionmakers' retaliatory remarks and by comparative evidence of disparate treatment — not only by a head-on attack on the employer's stated performance reasons — and that lay testimony alone can support a substantial emotional-distress award.

Hanson v. Lucky Stores: Finite Leave as a Reasonable Accommodation

August 13, 1999
Affirming summary judgment for the employer, the Court of Appeal held in the published portion of this opinion that a finite leave of absence can be a reasonable accommodation under FEHA, “provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.” On undisputed facts the employer had accommodated its injured meatcutter twice — sixteen months of leave (nearly double the CBA's nine) and an offer of a vacant part-time position — so it need not also furnish the hand brace and other measures the employee preferred. The interactive-process discussion has since been overtaken by the Legislature's addition of an independent interactive-process duty (Gov. Code, § 12940, subd. (n)).

Aguilar v. Avis Rent A Car System, Inc.

August 2, 1999
A remedial injunction prohibiting an employer (and a supervisor adjudicated to have engaged in unlawful racial harassment) from continuing to use racial epithets in the workplace against the plaintiff employees is permissible and does not constitute an unconstitutional prior restraint, because it enjoins speech only…

Ramirez v. Yosemite Water Co.

June 17, 1999
The outside-salesperson exemption is determined by a fact-specific inquiry into how the employee actually spends his or her time, not merely the employer’s job description or expectations; California uses its own quantitative standard (more than half the time engaged in outside sales) rather than importing the federal…

Etter v. Veriflo Corp.: The “Severe or Pervasive” Threshold for FEHA Racial Harassment

October 20, 1998
In one of California's first published workplace racial-harassment decisions under FEHA, the Court of Appeal affirmed a defense verdict, holding that the trial court properly instructed jurors that “occasional, isolated, sporadic, or trivial” racial conduct is not actionable and importing the federal Title VII “severe or pervasive” threshold into state law.

City of Moorpark v. Superior Court

August 17, 1998
Section 132a does not provide an exclusive remedy; an employee may pursue FEHA disability-discrimination and common-law wrongful-termination claims notwithstanding the availability of a section 132a remedy.

Godwin v. Hunt Wesson: “Very Little” Direct Evidence, “Specific and Substantial” Circumstantial Evidence — the Ninth Circuit’s Two-Track Pretext Standard

August 11, 1998
Reversing summary judgment in a FEHA failure-to-promote case, the Ninth Circuit reconciled its competing pretext lines — direct evidence of bias needs only "very little" weight to reach a jury, while circumstantial evidence must be "specific" and "substantial" — a formulation later questioned after Desert Palace but still central to MSJ briefing on both sides.

Reno v. Baird

July 16, 1998
The FEHA allows employees to sue and hold liable their employers, but not individual supervisors, for discrimination; the same rule applies to common-law claims for wrongful discharge (id. at p. 643).

Beyda v. City of Los Angeles: Awareness and “Me-Too” Harassment

July 9, 1998
In Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, the Second District affirmed a defense judgment, holding that a hostile-environment claim requires conduct that is both objectively and subjectively offensive, and that harassment directed at other employees is relevant only where the plaintiff was aware of it—conduct she neither witnessed nor knew about could not have altered the conditions of her own employment.

Murillo v. Rite Stuff Foods: After-Acquired Evidence Is No Complete Defense to a FEHA Harassment Claim

June 30, 1998
An undocumented assembler bought false papers to get hired, then sued for relentless sexual harassment. The employer's only defense was after-acquired evidence of her document fraud. Following McKennon, the Court of Appeal reversed: after-acquired evidence is no complete bar to a FEHA harassment claim, an undocumented worker keeps full employment-law protection while employed, and the defense's factual predicate — whether the employer in fact would have fired her — is a jury question.

Faragher v. City of Boca Raton

June 26, 1998
An employer is vicariously liable for actionable hostile-environment harassment by a supervisor with authority over the employee. When no tangible employment action was taken, the employer may raise an affirmative defense (the Faragher/Ellerth defense): that it exercised reasonable care to prevent and promptly correct…

Burlington Industries v. Ellerth: Supervisor Harassment, Vicarious Liability, and the Ellerth/Faragher Defense

June 26, 1998
In Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, the U.S. Supreme Court held that an employer is vicariously liable under Title VII for a supervisor’s hostile-environment harassment of a subordinate, but where the harassment yields no tangible employment action the employer may raise the two-element Ellerth/Faragher affirmative defense. The Court demoted the “quid pro quo” and “hostile work environment” labels from liability tests to threshold proof categories and grounded employer liability in general agency principles.

Weeks v. Baker & McKenzie

May 4, 1998
In Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, the Court of Appeal affirmed a FEHA sexual-harassment verdict for a legal secretary against a partner and his international law firm, sustaining punitive damages under Civil Code section 3294. The court applied section 3294, subdivision (b)'s managing-agent and ratification requirements to hold the firm liable for the partner's harassment and upheld the punitive award against constitutional challenge.

Trujillo v. North County Transit Dist.: No Failure-to-Prevent Liability Without an Underlying Wrong

April 17, 1998
The Court of Appeal affirmed judgment notwithstanding the verdict for the employer, holding that a jury finding of failure to take reasonable steps to prevent discrimination and harassment cannot stand where the same jury found, by special verdict, that no discrimination, harassment, or retaliation actually occurred. A failure-to-prevent claim is derivative: there must be an underlying actionable wrong to prevent.

Oncale v. Sundowner Offshore Services, Inc.

March 4, 1998
Title VII’s prohibition of discrimination “because of sex” protects against same-sex sexual harassment; nothing in the statute bars a claim merely because the plaintiff and the harassers are of the same sex, so long as the conduct constitutes discrimination because of sex and meets Title VII’s other requirements.

Cotran v. Rollins Hudig Hall Int’l, Inc.

January 5, 1998
Good cause to terminate under an implied “good cause” contract means a reasoned, good-faith conclusion that the misconduct occurred, supported by substantial evidence gathered through an adequate investigation that gave the employee notice and a chance to respond — not the jury’s after-the-fact determination of…

Hersant v. Department of Social Services: The FEHA Summary-Judgment Pretext Standard

September 18, 1997
In Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, the Court of Appeal affirmed summary judgment for an employer in a FEHA age-discrimination case, adopting the rule that once an employer offers a legitimate, non-age-based reason for an adverse action, the employee must offer substantial evidence that the reason is untrue or pretextual, or evidence of discriminatory animus, or a combination, and not merely triable issues about whether the decision was sound.

Stevenson v. Superior Court

August 27, 1997
Age discrimination in violation of the FEHA supports a common-law claim for wrongful discharge in violation of public policy. When a plaintiff relies on a statutory prohibition to support such a claim, the common-law claim is subject to the statute’s substantive limits (the nature and scope of the prohibition) but not…

Sada v. Robert F. Kennedy Medical Center — Comparative Treatment, Pretext, and the Applicant’s Right Against Retaliation

July 1, 1997
Reversing summary judgment for the hospital, Division One held that a registry nurse's point-by-point factual dispute, the employer's conclusory comparative-qualifications showing, and the decisionmaker's anti-Mexican remarks created triable issues of discrimination and retaliation — and that the FEHA's antiretaliation provision protects job applicants, including one whose injury was the loss of temporary contract work.

Mullins v. Rockwell International Corp.: When a Constructive-Discharge Contract Claim Accrues

May 29, 1997
In Mullins v. Rockwell International Corp. (1997) 15 Cal.4th 731, a long-tenured manager who resigned after a demotion and a steady erosion of his responsibilities sued for constructive discharge in contract; the trial court and Court of Appeal held his claims time-barred, running the limitations period from the date he learned of the adverse changes. A unanimous Supreme Court reversed. Extending its reasoning in Romano v. Rockwell, the court held that the limitations period for a contract action based on constructive discharge runs from the date of actual termination of employment — the resignation — not from the onset of, or the employee's knowledge of, the intolerable conditions. Because the breach alleged is termination without good cause, and an employee who continues to perform retains an election of remedies, the cause of action accrues only upon resignation. The court disapproved Regents of University of California v. Superior Court to the extent inconsistent.

Loder v. City of Glendale

January 6, 1997
A public employer may require suspicionless drug testing of job applicants as part of a lawful pre-employment medical examination, because applicants’ privacy expectations are lower and such testing is a reasonable hiring practice; but it may not impose the same blanket, suspicionless testing on current employees…

Prilliman v. United Air Lines, Inc.

January 1, 1997
Prilliman v. United Air Lines, Inc. An employer who knows of an employee’s disability has an affirmative duty to make known available, suitable job opportunities and to determine whether the employee is interested and qualified — not merely to wait for the employee to ask. Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935 […]

Tidewater Marine Western, Inc. v. Bradshaw

December 19, 1996
The DLSE’s interpretive policies constitute regulations and are void because they were not adopted under the Administrative Procedure Act (the “underground regulation” rule); nevertheless, the agency properly exercised enforcement jurisdiction, and the IWC wage orders apply to the work at issue, so the trial court…

Soldinger v. Northwest Airlines: FEHA Religious Accommodation and RLA Preemption

November 27, 1996
A conservative Jewish airline employee fired for refusing to work the first day of Passover sued under FEHA for religious discrimination, retaliation, and failure to accommodate. The Court of Appeal reversed summary judgment, holding the claims were not RLA-preempted 'minor' disputes and that a collective bargaining agreement does not, in the abstract, discharge an employer's duty to accommodate where the employer did nothing to explore alternatives. Any reasonable accommodation suffices, but the employer must actually offer one.

Fiol v. Doellstedt: No Personal FEHA Liability for a Nonharassing Supervisor’s Inaction

November 19, 1996
The Court of Appeal affirmed judgment on the pleadings for a second-tier supervisor sued only for failing to act on a harassment complaint, holding that a nonharassing supervisor is not personally liable under FEHA — not as an aider and abettor of the harasser or employer, and not as the employer's agent — and distilling supervisor liability into three clear rules.

Doe v. Capital Cities: Strict Liability for an Agent-Harasser Off the Worksite

November 8, 1996
An aspiring actor alleged a casting director drugged and gang-raped him at the director's home. The Court of Appeal held the director could be treated as the network's agent, triggering FEHA strict liability rather than the negligence standard for coworkers, and that the off-site, off-hours assault was sufficiently work-related to be actionable — while affirming dismissal of the negligent-hiring claim.

Janken v. GM Hughes Electronics

June 5, 1996
Individual supervisors are not personally liable under the FEHA for discrimination, which arises out of the necessary personnel-management functions of the employer; by contrast, harassment — conduct outside the scope of necessary job performance and presumably engaged in for personal gratification or bias — can give…

Proksel v. Gattis: Paramour Favoritism Is Not Sex Discrimination Under FEHA

January 26, 1996
In Proksel v. Gattis (1996) 41 Cal.App.4th 1626, the Court of Appeal held that an employer's favoritism toward a coworker with whom he is romantically involved does not, without more, give rise to a sex discrimination or sexual harassment claim under FEHA or California public policy — declining to make courts a generalized police power over consensual office relationships.

Caldwell v. Paramount Unified School Dist.: McDonnell Douglas Burdens Are for the Judge, Not the Jury

December 20, 1995
A school administrator lost his FEHA age- and race-discrimination claims at trial, then won a new trial when the judge decided he had mis-instructed the jury on the McDonnell Douglas prima facie burden. The Court of Appeal reversed, holding the prima facie and rebuttal stages are questions of law for the court, not the jury: once the employer articulates a legitimate reason, the burden-shifting construct drops from the case and only the ultimate question of discriminatory intent reaches the jury.

Badih v. Myers: Pregnancy Discrimination Is Sex Discrimination Under the California Constitution

July 20, 1995
Nine days after Fatmeh Badih told her employer — a physician with fewer than five employees — that she was pregnant, her last day was set; the DFEH would not even accept her complaint because the office was too small for the FEHA. Division One of the First District affirmed her wrongful-discharge verdict anyway, holding that pregnancy discrimination is a form of sex discrimination under article I, section 8 of the California Constitution, whose fundamental public policy against sex discrimination in employment binds every employer regardless of size. Jennings v. Marralle was distinguished, not disturbed: age has no constitutional anchor, but sex — and therefore pregnancy — does. Badih remains the pleading answer for pregnancy discharges at California's smallest workplaces.

Camp v. Jeffer, Mangels, Butler & Marmaro: After-Acquired Evidence and Government Disqualification

May 31, 1995
A married couple fired by a law firm sued for wrongful termination, but the firm discovered during litigation that both had concealed felony convictions. The Court of Appeal affirmed summary judgment: their at-will acknowledgments doomed the contract claims, and the after-acquired-evidence doctrine barred the statutory and public-policy claims because the Camps had misrepresented a government-imposed job qualification, leaving them unlawfully unqualified for the position. Camp marks the point where after-acquired evidence shifts from limiting remedies to barring recovery outright.

Matthews v. Superior Court: Individual Supervisor Liability for Harassment Under FEHA

April 26, 1995
In a same-sex sexual-harassment action under FEHA, the trial court sustained the individual defendants' demurrers on the theory that only the employer can be liable. The Court of Appeal granted a writ of mandate, holding that 'persons' under Government Code section 12965 includes individuals, so a harassment claimant may sue the supervisors who personally participated in or aided and abetted the conduct. Harassment by a supervisor with hire-and-fire power is a particularly personal form of discrimination, distinct from hiring discrimination, for which the employer alone answers.

McKennon v. Nashville Banner Publishing Co.: After-Acquired Evidence Limits Remedies, Not Liability

January 23, 1995
In McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352, a 62-year-old secretary discharged in what the employer conceded for summary-judgment purposes was age discrimination admitted in deposition that she had copied confidential company documents during her final year. The lower courts held this after-acquired evidence barred all ADEA relief. A unanimous Supreme Court, per Justice Kennedy, reversed. Such evidence does not bar liability — the ADEA violation that prompted the discharge cannot be disregarded — but it bears on the remedy: as a general rule it forecloses reinstatement and front pay, and back pay runs only from the date of the unlawful discharge to the date the employer discovered the wrongdoing. And the employer must first prove the wrongdoing was so severe that it would in fact have discharged the employee on that ground alone.

Martin v. Lockheed Missiles & Space Co. — McDonnell Douglas Meets California Summary Judgment

November 11, 1994
The Sixth District's 1994 decision translated McDonnell Douglas burden-shifting into Code of Civil Procedure section 437c practice — affirming summary judgment for Lockheed where a laid-off 65-year-old answered a documented reduction in force with speculation rather than "substantial responsive evidence," and holding that EEOC-only filings did not exhaust DFEH remedies.

Turner v. Anheuser-Busch, Inc.

July 25, 1994
To establish a constructive discharge, an employee must prove that the employer either intentionally created or knowingly permitted working conditions so intolerable or aggravated that a reasonable person in the employee’s position would have had no reasonable alternative but to resign; ordinary job dissatisfaction or…

General Dynamics Corp. v. Superior Court

July 18, 1994
General Dynamics Corp. v. Superior Court In-house counsel may sue for wrongful termination — both on an implied-in-fact contract theory and, within limits, a Tameny public-policy theory — even though a client may generally discharge its lawyer at will. General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164 Parallel citations: 876 P.2d 487; 32 […]

Cooper v. Rykoff-Sexton: Application Fraud Is Not a Complete After-Acquired-Evidence Defense

April 28, 1994
A 10-year employee sued for wrongful discharge and age discrimination; the employer then discovered application misrepresentations made nearly a decade earlier and won summary judgment on the theory that the fraud forfeited all remedies. The Court of Appeal reversed, declining to adopt a blanket rule that material application falsification is a complete defense to a claim the employer did not know about when it fired the worker. The first published California decision on the point, Cooper anticipated the Supreme Court's McKennon by less than a year.

Kelly-Zurian v. Wohl Shoe Co.: Harris Comes to FEHA, and the Limits of Strict Liability

February 10, 1994
In Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, the Court of Appeal carried Harris v. Forklift Systems into California's FEHA, holding that harassment need not seriously affect a plaintiff's psychological well-being to be actionable. It confirmed that an employer is strictly liable in compensatory damages for a supervisor's harassment, but held that punitive damages run only through Civil Code section 3294's managing-agent test — which a supervisor with hiring-and-firing power, but no policymaking discretion, did not satisfy.

Hill v. National Collegiate Athletic Assn.

January 28, 1994
A plaintiff asserting a state constitutional privacy claim must establish (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) conduct constituting a serious invasion of privacy; the defendant may then prevail by showing legitimate, countervailing…

Lakin v. Watkins Associated Industries: Section 3291 Prejudgment Interest, Fee-Order Appealability, and No Interest on Punitives

December 16, 1993
In Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, a unanimous California Supreme Court resolved three recurring procedural and damages questions: a postjudgment order denying discovery-sanction (cost-of-proof) attorney fees is separately appealable; a personal-injury plaintiff bears the burden of proving which portion of a general award is “damages for personal injury” before claiming Civil Code section 3291 prejudgment interest; and that interest never accrues on punitive damages. The court reversed the Court of Appeal and remanded.

Mogilefsky v. Superior Court: FEHA Reaches Same-Sex Sexual Harassment

December 10, 1993
A male creative editor alleged that his male supervisor subjected him to quid pro quo and hostile-environment sexual harassment. Sustaining the complaint, the Court of Appeal held that FEHA’s prohibition on sexual harassment reaches same-gender conduct: the statute protects against harassment “because of sex” regardless of whether harasser and victim are of the same sex.

Harris v. Forklift Systems: The Severe-or-Pervasive Hostile-Environment Standard

November 9, 1993
A unanimous Supreme Court held that Title VII hostile-environment harassment need not “seriously affect [an employee’s] psychological well-being” or cause tangible injury. Reaffirming Meritor, the Court adopted a “middle path” requiring conduct severe or pervasive enough to create an environment that both a reasonable person and the victim find abusive, judged on the totality of the circumstances.

St. Mary’s Honor Center v. Hicks

June 25, 1993
St. Mary’s Honor Center v. Hicks Disproving the employer’s stated reason permits — but does not compel — a finding of intentional discrimination; the plaintiff must persuade the factfinder both that the reason was false and that discrimination was the real reason. St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502 Parallel citations: 113 […]

Bihun v. AT&T Information Systems: The Missing Personnel File and the Suppression Inference

February 24, 1993
The Court of Appeal affirmed a multimillion-dollar FEHA sexual-harassment judgment, holding that AT&T's concealment of the harasser's lost personnel file justified a willful-suppression instruction, and that sexual harassment is a personal injury supporting prejudgment interest. The decision is a leading authority on respondeat-superior liability for harassment and on the adverse inference from spoliated employment records.

Clark v. Claremont University Center: Multilevel-Review Causation in FEHA Race Discrimination

May 13, 1992
A Black assistant professor denied tenure won a jury verdict for race discrimination under FEHA, and the Court of Appeal affirmed in the published portion of its opinion. The court held the verdict was supported by substantial evidence and that a tenure plaintiff need not prove intentional discrimination at every stage of a multilevel review: discrimination at one level can infect the ultimate decision. On causation, racial animus need not be the sole motivation, only a but-for cause of the adverse decision.

Gantt v. Sentry Insurance

February 27, 1992
The discharge stated an actionable Tameny claim and was not preempted by the workers’-compensation law (id. at p. 1085). More durably, the court held that the public policy underpinning a Tameny claim must be “tethered to” specific constitutional or statutory provisions, not merely the court’s own notions of sound…

Flait v. North American Watch Corp. — a supervisor’s opposition to harassment of a subordinate is protected activity

February 6, 1992
In a foundational FEHA retaliation opinion, the Court of Appeal held that a supervisor who confronts a fellow manager over sexual harassment of a subordinate engages in protected activity based on a reasonable, good-faith belief — whether or not harassment is ultimately proved — and reversed summary adjudication where the confronted harasser himself made the termination decision four months later.

International Union, UAW v. Johnson Controls, Inc.

March 20, 1991
In UAW v. Johnson Controls, Inc. (1991) 499 U.S. 187, the Supreme Court held that an employer's fetal-protection policy excluding all fertile women from lead-exposed jobs is facial sex discrimination under Title VII as amended by the Pregnancy Discrimination Act — not a neutral practice to be tested for business necessity. The narrow bona fide occupational qualification defense reaches only qualifications affecting an employee's ability to do the job, and cannot be grounded in feared harm to a future fetus or in cost and tort-liability concerns.

Rojo v. Kliger

December 20, 1990
The FEHA does not displace other state-law remedies, including common-law claims, for employment discrimination; an employee need not exhaust FEHA’s administrative process before pursuing nonstatutory causes of action; and sex discrimination in employment may support a tort claim for wrongful discharge in…

Johnson Controls, Inc. v. Fair Employment & Housing Com.

February 28, 1990
In Johnson Controls, Inc. v. Fair Employment & Housing Com. (1990) 218 Cal.App.3d 517, the Court of Appeal struck down a fetal-protection policy barring fertile women from lead-exposed battery jobs as overt sex discrimination under FEHA. The court articulated California's two-part bona fide occupational qualification test — the sex-based qualification must be reasonably necessary to the normal operation of the business, and the employer must show that all or substantially all of the excluded class cannot safely and efficiently perform the job — and held the employer failed both prongs.
For practitioners

Practice guides

Each guide gathers and summarizes the controlling cases and authorities on a single question — a research starting point you can cite from.

Practice guideRetaliation under Lab. Code § 1102.5A practitioner’s synthesis of the controlling cases and authorities.Practice guideFEHA discrimination & the McDonnell Douglas testA practitioner’s synthesis of the controlling cases and authorities.Practice guideTermination in violation of public policyA practitioner’s synthesis of the controlling cases and authorities.Practice guideCompelling arbitration of FEHA claimsA practitioner’s synthesis of the controlling cases and authorities.Practice guideDisability discrimination & reasonable accommodationA practitioner’s synthesis of the controlling cases and authorities.Practice guideSexual harassment under FEHAA practitioner’s synthesis of the controlling cases and authorities.Practice guideOff-the-clock work & compensable hours workedA practitioner’s synthesis of the controlling cases and authorities.Practice guideMeal & rest breaks & premium payA practitioner’s synthesis of the controlling cases and authorities.Practice guideWage & hour class actions & PAGAA practitioner’s synthesis of the controlling cases and authorities.Practice guideIndependent-contractor misclassification & the ABC testA practitioner’s synthesis of the controlling cases and authorities.