Wrongful Termination Additional Info – 3

Wrongful Termination- Additional Information 3

Employer Defenses- Good Cause_ Wrongful Termination Additional Info – 3

Employer Defenses – Good Cause Defense

In the context of wrongful termination in California, the employer’s “good cause” defense is a critical aspect of employment law. Employers may invoke this defense to justify their decision to terminate an employee. In this overview, I’ll provide a comprehensive explanation of the employer’s good cause defense, its legal consequences, potential problems, and examples to illustrate the concept.

1. Good Cause Defense in California:

Under California law, employers can terminate employees without breaching employment contracts if they have “good cause” for doing so. Good cause is a legally recognized and justified reason for termination. The concept of good cause serves as a defense against wrongful termination claims.

2. Elements of Good Cause Defense:

To successfully assert the good cause defense, employers typically need to demonstrate the following elements:

a. Legitimate Business Reason: Employers must have a legitimate business reason for the termination. Common reasons may include poor job performance, misconduct, violation of company policies, or economic necessity (e.g., layoffs).

b. Consistency: Employers must show that they applied their termination policies consistently and fairly across all employees in similar situations.

c. Notice and Opportunity to Improve: In some cases, employers may be required to provide employees with notice of performance issues and an opportunity to improve before termination, particularly if it is an established company policy.

3. Legal Consequences of the Good Cause Defense:

If an employer successfully demonstrates good cause for termination, it can have significant legal consequences:

a. Defense Against Wrongful Termination Claims: The employer’s good cause defense can shield them from liability in wrongful termination lawsuits.

b. Preservation of At-Will Employment: In cases where employment is at-will (i.e., not governed by an employment contract), a successful good cause defense reinforces the employer’s right to terminate employees for legitimate reasons.

4. Problems that Could Arise:

Several issues and complexities can arise with the employer’s good cause defense:

a. Subjectivity: Determining what constitutes “good cause” can be subjective, leading to disputes over whether the employer’s reasons are justified.

b. Inconsistent Application: If an employer inconsistently applies termination policies or selectively enforces them, it may weaken the good cause defense and invite claims of discrimination or retaliation.

c. Failure to Provide Notice: If an employer fails to provide employees with notice or an opportunity to improve performance as required by company policy or employment contracts, it can undermine the defense.

5. Examples:

Here are examples to illustrate the employer’s good cause defense:

a. Poor Job Performance: An employee consistently fails to meet performance targets despite receiving feedback and coaching. The employer decides to terminate the employee for poor job performance, which could be a valid good cause defense.

b. Misconduct: An employee engages in serious misconduct, such as harassment or theft, and the employer terminates the employee in accordance with company policies. This can be a good cause defense.

c. Layoffs Due to Economic Necessity: A company experiences financial hardship and is forced to lay off a portion of its workforce to remain solvent. The terminations are conducted in a non-discriminatory manner based on objective criteria, such as seniority or job function. This may be a good cause defense against wrongful termination claims.

Conclusion

In summary, the employer’s good cause defense is a crucial aspect of California employment law that allows employers to justify terminations when they have legitimate business reasons. However, it is essential for employers to apply termination policies consistently and fairly to avoid potential legal problems. Employees who believe they were wrongfully terminated should seek legal advice to assess the validity of the employer’s good cause defense and determine whether their rights have been violated under California employment law.

______________________________

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Additional Information

In California, the concept of “good cause” in employment law is particularly relevant in cases of wrongful termination. This overview will delve into the legal framework, potential issues, and examples to illustrate these concepts.

Legal Framework

1. At-Will Employment: California primarily follows the at-will employment doctrine, meaning either the employer or employee can terminate the employment relationship at any time, for any reason. However, there are exceptions.
2. Good Cause Definition: “Good cause” is a legal term used to justify an employer’s decision to terminate an employee. It generally refers to legitimate, non-discriminatory, and non-retaliatory reasons for termination. Examples include poor performance, misconduct, violation of company policy, or economic necessity.
3. Legal Standards for Good Cause: Courts evaluate whether an employer had good cause for termination based on the reasonableness of the employer’s decision, considering the circumstances.
4. Exceptions to At-Will Employment: These include implied contracts, public policy violations, and anti-discrimination laws. An employer cannot claim good cause if the termination violates these exceptions.

Consequences of Violating Good Cause

1. Wrongful Termination Claims: If an employer cannot establish good cause, the employee might have grounds for a wrongful termination lawsuit.
2. Damages: Employees can seek damages for lost wages, emotional distress, and punitive damages in cases of egregious conduct.
3. Reputational Risk: Employers face reputational damage, which can affect their business and ability to attract talent.

Potential Problems

1. Subjectivity: Determining what constitutes good cause can be subjective, leading to legal disputes.
2. Documentation and Evidence: Employers must adequately document performance issues or misconduct to substantiate their claims of good cause.
3. Implied Contracts: Even in at-will situations, statements or promises made by employers can be construed as implied contracts, limiting the employer’s ability to terminate without good cause.
4. Retaliation Claims: Employees might claim that the termination was retaliatory, especially if they have engaged in protected activities like whistleblowing.

Examples

1. Performance-Based Termination: An employee consistently underperforms despite warnings and performance improvement plans. The employer documents these issues and terminates the employee for poor performance, constituting good cause.
2. Violation of Company Policy: An employee violates a critical company policy, such as a safety regulation or anti-harassment policy. This violation can be considered good cause for termination.
3. Economic Layoff: An employer faces economic hardship and decides to lay off a portion of the workforce. If done fairly and based on objective criteria, this can be good cause for termination.
4. Wrongful Termination Scenario: An employee files a sexual harassment complaint and is subsequently fired for a minor infraction. This could be seen as retaliation rather than good cause, leading to legal consequences for the employer.

Conclusion

In California, while employers have broad discretion in terminating employees under the at-will doctrine, they must ensure that the reasons fall under “good cause” to avoid legal repercussions. The subjective nature of this concept and the need for thorough documentation make it a complex area in employment law. Employers are advised to consult legal experts to navigate these intricacies and minimize legal risks.

_______

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2421. Breach of Employment Contract—Specified Term—Good- Cause Defense (Lab. Code, § 2924)

[Name of defendant] claims that [he/she/nonbinary pronoun/it] did not breach the employment contract because [he/she/nonbinary pronoun/it] [discharged/demoted] [name of plaintiff] for good cause. To establish good cause, [name of defendant] must prove:

[that [name of plaintiff] willfully breached a job duty] [or]

[that [name of plaintiff] continually neglected [his/her/nonbinary pronoun] job duties] [or]

[that a continued incapacity prevented [name of plaintiff] from performing [his/her/nonbinary pronoun] job duties.]

New September 2003; Revised June 2012

Directions for Use

This instruction sets forth the statutory grounds under which an employer may terminate an employment contract for a specified term. (See Lab. Code, § 2924.) It should be given when the employee alleges wrongful discharge in breach of the contract and the employer defends by asserting plaintiff was justifiably discharged.

This instruction may not be appropriate if the parties have agreed to a particular meaning of “good cause” (e.g., a written employment agreement specifically defining “good cause” for discharge). (See Uecker & Assocs. v. Lei (In re San Jose Med. Mgmt.) (B.A.P. 9th Cir. 2007) 2007 Bankr. LEXIS 4829.) If so, the instruction should be modified to set forth the contractual grounds for good cause. In the absence of grounds for termination in the contract, the employer is limited to those set forth in the statute. (See Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 57 [100 Cal.Rptr.2d 627].)

The third option may not be asserted if the plaintiff has a statutory right to be absent from work (for example, for family or medical leave or to accommodate a disability) throughout the entire period of incapacity.

Sources and Authority

• At-Will Employment. Labor Code section 2922.
• Termination of Employment for Specified Term. Labor Code section 2924.
• “[L]abor Code section 2924 has traditionally been interpreted to ‘inhibit[] the termination of employment for a specified term except in case of a wilful breach of duty, of habitual neglect of, or continued incapacity to perform, a duty.’ ” (Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32, 57 [100 Cal.Rptr.2d 627], internal citations omitted.)
• “Unlike a wrongful discharge based on an implied-in-fact contract, an employee

who has a contract for a specified term may not be terminated prior to the term’s expiration based on an honest but mistaken belief that the employee breached the contract: Such a right would treat a contract with a specified term no better than an implied contract that has no term; such a right would dilute the enforceability of the contract’s specified term because an employee who had properly performed his or her contract could still be terminated before the term’s end; and such a right would run afoul of the plain language of Labor Code section 2924, which allows termination of an employment for a specified term only ‘in case of any willful breach of duty . . . habitual neglect of . . . duty or continued incapacity to perform it.’ Termination of employment for a specified term, before the end of the term, based solely on the mistaken belief of a breach, cannot be reconciled with either the governing statute’s text or settled principles of contract law.” (Khajavi, supra, 84 Cal.App.4th at pp. 38–39.)

• Good cause in the context of wrongful termination based on an implied contract “ ‘is quite different from the standard applicable in determining the propriety of an employee’s termination under a contract for a specified term.’ ” (Khajavi, supra, 84 Cal.App.4th at p. 58, internal citations omitted.)
• “An employer is justified in discharging his employee, when the latter fails to perform his duty, even though injury does not result to the employer as a result of the employee’s failure to do his duty.” (Bank of America National Trust & Savings Ass’n v. Republic Productions, Inc. (1941) 44 Cal.App.2d 651, 654 [112 P.2d 972], internal citation omitted.)
• “To terminate an employment without the expiration of its contractual term ‘there must be good cause.’ The grounds for terminating such an employment are stated in Labor Code section 2924. It is therefore not every deviation of

the employee from the standard of performance sought by his employer that will justify a discharge. There must be some ‘wilful act or wilful misconduct……………………………………….. ’

when the employee uses his best efforts to serve the interests of his employer.” (Holtzendorff v. Housing Authority of the City of Los Angeles (1967) 250 Cal.App.2d 596, 610 [58 Cal.Rptr. 886], internal citation omitted.)

• “ ‘Willful’ disobedience of a specific, peremptory instruction of the master, if the instruction be reasonable and consistent with the contract, is a breach of duty—a breach of the contract of service; and, like any other breach of the contract, of itself entitles the master to renounce the contract of employment.” (May v. New York Motion Picture Corp. (1920) 45 Cal.App. 396, 403 [187 P. 785].)
• “An employment agreement that specifies the length of employment (e.g., two years) limits the employer’s right to discharge the employee within that period. Unless the agreement provides otherwise (e.g., by reserving the right to discharge for cause), the employer may terminate employment for a specified term only for [the grounds specified in Labor Code section 2924].” (Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A, Employment Presumed At Will, ¶ 4:47 (The Rutter Group)

Secondary Sources

Chin et al., Cal. Practice Guide: Employment Litigation, Ch. 4-A, Employment Presumed At Will, ¶¶ 4:2, 4:47, 4:56, 4:57 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 4-B, Agreements Limiting At-Will Termination, ¶¶ 4:47, 4:56, 4:57 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract Actions, §§ 8.22–8.26

4 Wilcox, California Employment Law, Ch. 62, Avoiding Wrongful Termination and Discipline Claims, § 62.02 (Matthew Bender) 21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, §§ 249.13, 249.21, 249.60–249.63

Employer Defenses- At Will Employment- Wrongful Termination Additional Info – 3

At Will Employment

At-Will Employment: In jurisdictions with at-will employment, employers can generally terminate employees for any reason, as long as it’s not illegal. Determining whether a termination was wrongful can be complex.

At-will employment is a cornerstone of California’s employment law, defining the basic relationship between employers and employees. This concept brings with it various legal nuances and potential issues.

At-Will Employment in the Context of Wrongful Termination and Employment Law in California

Introduction: At-will employment is a fundamental aspect of employment law in California, providing both employers and employees with flexibility in terminating the employment relationship. However, this concept is not without its legal complexities and potential pitfalls. In this comprehensive overview, we will explore the key aspects of at-will employment in California, including the legal framework, potential problems, legal consequences, and relevant examples.

Legal Framework:

At-will employment is a default employment relationship in California, meaning that, unless there is a specific contract or collective bargaining agreement stating otherwise, either the employer or the employee can terminate the employment relationship at any time, with or without cause or notice. This is governed by both state and federal laws, and it establishes the foundation for employment relationships in California.

Key legal principles related to at-will employment in California

1. Termination Without Cause: Employers have the right to terminate employees without providing a reason, as long as the termination does not violate other legal protections (e.g., discrimination laws or whistleblower protections).
2. Exceptions to At-Will Employment: Certain limitations to at-will employment exist, including employment contracts, implied contracts, public policy exceptions, and statutory protections. These exceptions can provide employees with legal grounds to challenge their termination.

Potential Problems:

At-will employment can lead to several potential problems, which may result in wrongful termination claims. Some of these problems include:

1. Discrimination and Retaliation: Employers may use the at-will employment doctrine as a cover to discriminate against or retaliate against employees for reasons prohibited by state and federal anti-discrimination laws.
2. Implied Contracts: Even in at-will employment relationships, implied contracts can arise from employer statements, policies, or actions. Employees may argue that they had a legitimate expectation of continued employment, which can lead to disputes over wrongful termination.
3. Public Policy Exceptions: California recognizes a public policy exception to at-will employment, meaning that employers cannot terminate employees if it violates public policy, such as terminating an employee for refusing to engage in illegal activities.
4. Bad Faith Termination: Employers who act in bad faith when terminating an employee may expose themselves to legal liability. For example, firing an employee to avoid paying commissions or bonuses that are due can lead to wrongful termination claims.

Examples and Reasoning:

Example 1: An employee who has been with a company for several years has consistently received positive performance evaluations. However, they are terminated abruptly with no explanation. If the employee can demonstrate that there was an implied promise of continued employment based on their performance reviews and length of service, they may have a wrongful termination claim based on breach of an implied contract.

Example 2: An employer fires an employee shortly after the employee reports safety violations to a government agency. The employee claims wrongful termination in retaliation for reporting illegal activities. In this case, the employer may face legal consequences for violating whistleblower protection laws, even in an at-will employment context.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

More Information

1. Definition of At-Will Employment

• Basic Principle: In California, at-will employment means that an employer can terminate an employee at any time for any reason, except for an illegal reason, and likewise, an employee can resign for any reason.
• Presumption of At-Will: Employment in California is presumed to be at-will unless there’s an explicit agreement stating otherwise.

2. Legal Framework

• Statutory Exceptions: Despite the broad scope of at-will employment, there are statutory exceptions. These include the Fair Employment and Housing Act (FEHA), which prohibits discrimination, harassment, and retaliation in employment.
• Public Policy Exception: An employer cannot terminate an employee for reasons that violate California’s established public policy, such as firing someone for refusing to engage in illegal activities.
• Implied Contract Exception: Even in the absence of a written contract, an implied contract may be recognized based on the company’s policies, practices, or statements, limiting the employer’s ability to terminate at will.

3. Legal Consequences of At-Will Employment

• Termination for Any Reason: Employers can terminate employees without providing a reason, which can lead to abrupt job loss for employees.
• Limited Recourse for Employees: Employees generally have limited legal recourse against termination unless it falls under an exception.

4. Common Problems and Challenges

• Misunderstanding of Rights: Both employers and employees often misunderstand the extent of at-will employment rights and exceptions.
• Wrongful Termination Claims: If an employee believes their termination was due to illegal discrimination or retaliation, they may file a wrongful termination claim.
• Employee Morale and Turnover: The uncertainty of at-will employment can impact employee morale and lead to higher turnover.

5. Examples

• Example 1: An employer terminates an employee without notice because they found a more skilled candidate. This is generally lawful under at-will employment.
• Example 2: An employee is fired after filing a sexual harassment complaint. Despite at-will employment, this could constitute illegal retaliation.
• Example 3: A long-term employee is terminated without cause. They argue that the employer’s handbook created an implied contract, limiting at-will termination.

6. Preventive Measures for Employers

• Clear Communication: Employers should clearly communicate the at-will nature of employment in job offers and handbooks.
• Consistent Policies: Applying termination policies consistently can help avoid claims of discrimination or implied contract.
• Documentation: Documenting reasons for termination can be crucial in defending against wrongful termination claims.

7. Resolution and Litigation

• Settlement and Mediation: Disputes over at-will employment often get resolved through settlement or mediation.
• Litigation: When resolution is not possible, the matter may proceed to court, where a judge or jury will consider whether an exception to at-will employment applies.

In summary, while at-will employment in California offers flexibility for employers to manage their workforce, it also presents challenges, particularly regarding potential wrongful termination claims and the balancing of employee rights. Both employers and employees need to understand the nuances of at-will employment to navigate it effectively and legally.

Conclusion:

At-will employment is a foundational principle in California’s employment law, providing flexibility to both employers and employees. However, it is essential to recognize that there are exceptions and potential problems that can lead to wrongful termination claims. Employers should act in good faith and in compliance with all applicable laws to minimize the risk of legal consequences. Employees should be aware of their rights and seek legal counsel if they believe their termination violated the law or their employment contract. While at-will employment grants significant flexibility, it is not absolute, and both parties must navigate it within the boundaries of applicable laws and contractual obligations.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Breach of Employment Contract—Unspecified Term—“At- Will” Presumption

An employment relationship may be ended by either the employer or the employee, at any time, for any [lawful] reason, or for no reason at all.

This is called “at-will employment.”

An employment relationship is not “at will” if the employee proves that the parties, by words or conduct, agreed that [specify the nature of the alleged agreement, e.g., the employee would be discharged only for good cause].

New September 2003; Revised June 2006, November 2018

Directions for Use

If the plaintiff has made no claim other than the contract claim, then the word “lawful” may be omitted. If the plaintiff has made a claim for wrongful termination or violation of the Fair Employment and Housing Act, then the word “lawful” should be included in order to avoid confusing the jury.

Sources and Authority

• At-Will Employment. Labor Code section 2922.
• Contract of Employment. Labor Code section 2750.
• “Labor Code section 2922 has been recognized as creating a presumption. The statute creates a presumption of at-will employment which may be overcome ‘by evidence that despite the absence of a specified term, the parties agreed that the employer’s power to terminate would be limited in some way, e.g., by a requirement that termination be based only on “good cause.” ’ ” (Haycock v. Hughes Aircraft Co. (1994) 22 Cal.App.4th 1473, 1488 [28 Cal.Rptr.2d 248], internal citations omitted.)
• “Where there is no express agreement, the issue is whether other evidence of the parties’ conduct has a ‘tendency in reason’ to demonstrate the existence of an actual mutual understanding on particular terms and conditions of employment. If such evidence logically permits conflicting inferences, a question of fact is presented. But where the undisputed facts negate the existence or the breach of the contract claimed, summary judgment is proper.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 337 [100 Cal.Rptr.2d 352, 8 P.3d 1089], internal citations omitted.)
• “Because the presumption of at-will employment is premised upon public policy considerations, it is one affecting the burden of proof. Therefore, even if no substantial evidence was presented by defendants that plaintiff’s employment was at-will, the presumption of Labor Code section 2922 required the issue to be submitted to the jury.” (Alexander v. Nextel Communications, Inc. (1997) 52

Cal.App.4th 1376, 1381–1382 [61 Cal.Rptr.2d 293], internal citations omitted.)

• “The presumption that an employment relationship of indefinite duration is intended to be terminable at will is therefore ‘subject, like any presumption, to contrary evidence. This may take the form of an agreement, express or implied, that . . . the employment relationship will continue indefinitely, pending the occurrence of some event such as the employer’s dissatisfaction with the employee’s services or the existence of some “cause” for termination.’ ” (Foley

v. Interactive Data Corp. (1988) 47 Cal.3d 654, 680 [254 Cal.Rptr. 211, 765 P.2d 373], internal citation omitted.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§ 244

Chin et al., California Practice Guide: Employment Litigation, Ch.4-A, Employment Presumed At Will, ¶¶ 4:2–4:4 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch.4-B, Agreements Limiting At-Will Termination, ¶ 4:65 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Contract Actions, §§ 8.4–8.14

4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, §§ 60.01–60.02 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, §§ 249.10, 249.11, 249.13, 249.21, 249.43[1], [8] (Matthew Bender)

10 California Points and Authorities, Ch. 100, Wrongful Termination and Discipline, §§ 100.20–100.23 (Matthew Bender)

Employer Defenses- Business Judgment Rule- Wrongful Termination Additional Info – 3

Business Judgment Rule

The business judgment rule and at-will employment are pivotal concepts in the context of wrongful termination and employment law in California. Understanding their interplay and the legal consequences they entail is crucial. Here’s a detailed overview:

Business Judgment Rule

1. Definition: The business judgment rule is a legal principle that shields corporate directors and officers from liability for decisions made in good faith, with reasonable care, and in the best interest of the corporation. It presumes that management’s decisions are informed, well-intentioned, and in the company’s best interest.
2. Application in Employment Law: In wrongful termination cases, this rule can be invoked if the decision to terminate an employee is challenged. It can protect employers from liability if they can demonstrate that the termination decision was a business judgment made in good faith.

At-Will Employment

1. Definition: At-will employment means that either the employer or the employee can end the employment relationship at any time, with or without cause, and with or without notice.
2. California Law: California strongly adheres to the at-will employment doctrine, but with significant exceptions, particularly those related to discrimination, retaliation, or violation of public policy.

Legal Consequences

1. For Employers: While at-will employment allows flexibility in making personnel decisions, invoking the business judgment rule can be challenging. Employers must demonstrate that decisions were made in good faith and not as a pretext for illegal actions like discrimination.
2. For Employees: Employees can challenge terminations that they believe were made for unlawful reasons. However, overcoming the presumptions of at-will employment and the business judgment rule requires substantial evidence.

Problems and Challenges

1. Distinguishing Legitimate Business Decisions: It can be challenging to distinguish between legitimate business decisions and those made with unlawful motives, especially in at-will employment scenarios.
2. Proving Bad Faith or Discrimination: Employees face the challenge of proving that the termination was not a business judgment but rather due to unlawful reasons.
3. Documenting Decision-Making Processes: Employers need to meticulously document their decision-making processes to defend against wrongful termination claims under the business judgment rule.
4. Public Policy Exceptions: Navigating the exceptions to at-will employment, like terminations violating public policy, adds complexity for both employers and employees.

Examples

1. Business Judgment Rule Example: A company lays off several employees due to economic downturn, including a recent hire. If challenged, the company could invoke the business judgment rule, showing the decision was based on financial necessity, not individual employee performance or characteristics.
2. At-Will Employment Challenge: An employee is terminated without cause. While this is generally permissible under at-will employment, if the employee can prove the termination was due to discrimination, it would violate FEHA and constitute wrongful termination.

Conclusion

In California, the interplay of the business judgment rule and at-will employment doctrine forms a complex backdrop for wrongful termination cases. Employers often have broad leeway in making employment decisions, but these decisions can be scrutinized, especially if there’s evidence of unlawful motives. Employees challenging terminations must navigate these legal principles to establish that their dismissal was not just a business decision or a lawful exercise of at-will employment, but rather an illegal action. Due to the complexities involved, both employers and employees often require legal guidance in these matters.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2513. Business Judgment

In California, employment is presumed to be “at will.” That means that an employer may [discharge/[other adverse action]] an employee for no reason, or for a good, bad, mistaken, unwise, or even unfair reason, as long as its action is not for a [discriminatory/retaliatory] reason.

New December 2013

Directions for Use

Give this instruction to advise the jury that the employer’s adverse action is not illegal just because it is ill-advised. It has been held to be error not to give this instruction. (See Veronese v. Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 20–24 [151

Cal.Rptr.3d 41].)

Sources and Authority

• At-Will Employment. Labor Code section 2922.
• “[A] plaintiff in a discrimination case must show discrimination, not just that the employer’s decision was wrong, mistaken, or unwise……………………………………….. ‘ “The employer may

fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.    ‘While an employer’s judgment or course of action may seem poor

or erroneous to outsiders, the relevant question is…….. whether the given reason

was a pretext for illegal discrimination. The employer’s stated legitimate reason

. . . does not have to be a reason that the judge or jurors would act on or approve.’ ” ’ ” (Veronese, supra, 212 Cal.App.4th at p. 21, internal citation omitted.)

• “[I]f nondiscriminatory, [defendant]’s true reasons need not necessarily have been wise or correct. While the objective soundness of an employer’s proffered reasons supports their credibility  , the ultimate issue is simply whether the

employer acted with a motive to discriminate illegally. Thus, ‘legitimate’ reasons in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358 [100 Cal.Rptr.2d 352, 8 P.3d 1089], original italics, internal citations omitted.)

• “[U]nder the law [defendant] was entitled to exercise her business judgment, without second guessing. But [the court] refused to tell the jury that. That was error.” (Veronese, supra, 212 Cal.App.4th at p. 24.)
• “An employment decision based on political concerns, even if otherwise unfair, is not actionable under section 12940 so long as the employee’s race or other protected status is not a substantial factor in the decision.” (Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, 355 [223 Cal.Rptr.3d 173].)
• “What constitutes satisfactory performance is of course a question ordinarily vested in the employer’s sole discretion. An employer is free to set standards that might appear unreasonable to outside observers, and to discipline employees who fail to meet those standards, so long as the standards are applied evenhandedly. But that does not mean that an employer conclusively establishes the governing standard of competence in an employment discrimination action merely by asserting that the plaintiff’s performance was less than satisfactory. Evidence of the employer’s policies and practices, including its treatment of other employees, may support a contention, and an eventual finding, that the plaintiff’s job performance did in fact satisfy the employer’s own norms.” (Cheal

v. El Camino Hospital (2014) 223 Cal.App.4th 736, 742–743 [167 Cal.Rptr.3d

485].)

• “The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus. The employer’s mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor.” (Cheal, supra, 223 Cal.App.4th at p. 755.)

Secondary Sources

3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,

§ 244 et seq.

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,

§§ 1017–1021

Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A, Employment Presumed At Will, ¶ 4:25 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:194, 7:200–7:201, 7:356, 7:391–7:392, 7:530, 7:531, 7:535 (The Rutter Group)

4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, § 60.01 et seq. (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, § 249.11 (Matthew Bender) 10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful Termination and Discipline, § 100.23 (Matthew Bender)

Employer Defenses- Business Necessity- Wrongful Termination Additional Info – 3

Defense to Disparate Impact – Business Necessity and Rebuttal to Business Necessity

The “business necessity defense” in the context of disparate impact in California employment law is a critical aspect to understand for both employers and employees. This defense is used by employers to justify employment practices that have a disparate impact on a protected class, provided these practices are essential for the business and there is no less discriminatory alternative available.

Legal Framework of Business Necessity Defense

1. Federal and State Law Context: While federal law, specifically Title VII of the Civil Rights Act of 1964, sets the basis for the defense, California’s Fair Employment and Housing Act (FEHA) might have additional or stricter requirements.
2. Definition of Business Necessity: An employment practice is considered a “business necessity” if it is vital to the operation of the business and is related to job performance.
3. Burden of Proof: Initially, an employee must show that a particular employment practice causes a disparate impact. Then, the burden shifts to the employer to prove that the practice is a business necessity.

The Rebuttal to the Business Necessity Defense

An employee can counter the business necessity defense by demonstrating:

1. Availability of Less Discriminatory Alternatives: If there is an alternative employment practice that serves the same purpose without causing the disparate impact, the defense can be challenged.
2. Questioning Job-Relatedness: The employee can argue that the practice is not as closely related to job performance as the employer claims.
3. Proportionality and Reasonableness: The necessity of the practice must be proportional to its impact. If it excessively or unreasonably impacts a protected class, the defense may not hold.

Potential Problems and Examples

1. Educational Requirements: An employer requiring a college degree for a job that could be performed with a high school diploma could face challenges if this requirement disproportionately excludes certain minority groups. The employer must prove the necessity of a college degree for job performance.
2. Physical Ability Tests: If a physical ability test is mandatory for a position, and it disproportionately affects women, the employer must demonstrate the direct relevance of this test to the job duties.
3. Language Requirements: Insisting on fluency in a specific language, which may disproportionately affect certain ethnic groups, must be justified as essential for the job.

Reasoning and Logic Behind Challenges

• Identifying Less Discriminatory Alternatives: Employees and their legal representatives often focus on presenting alternative methods that meet the employer’s needs without causing a disparate impact.
• Scrutinizing the Direct Job-Relatedness: Courts will closely examine whether the challenged employment practice is necessary for the performance of the job at hand or if it’s a preference of the employer.
• Proportionality and Business Impact: Analyzing whether the practice is proportionate to its necessity and whether its removal would significantly disrupt the business.

Conclusion

The business necessity defense is a complex and nuanced aspect of employment law in California, requiring careful consideration of the job-relatedness and essentiality of employment practices that have a disparate impact. Employers must meticulously evaluate and document the necessity of their employment practices, while employees can challenge these practices by presenting less discriminatory alternatives or questioning their relevance to job performance. Navigating these legal waters requires a thorough understanding of both federal and state laws, as well as a careful analysis of the specific employment practices and their impacts on different protected classes.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2503. Affirmative Defense—Business Necessity/Job Relatedness

[Name of defendant] claims that the [employment practice/selection policy] is lawful because it is necessary to [his/her/nonbinary pronoun/its] business. To succeed, [name of defendant] must prove both of the following:

1. That the purpose of the [employment practice/selection policy] is to operate the business safely and efficiently; and
2. That the [employment practice/selection policy] substantially accomplishes this business purpose.

New September 2003

Directions for Use

The defense of business necessity is available for disparate impact claims but may not be used as a defense against a claim of intentional discrimination.

CACI No. 2504, Disparate Impact—Rebuttal to Business Necessity/Job Relatedness Defense, must be given if defendant asserts the defense of business necessity to a disparate impact employment discrimination claim.

Sources and Authority

• Justification of Disparate Impact. Cal. Code Regs., tit. 2, §§ 11010(b), 11017(a), (e).
• “In order to meet its burden the [employer] must demonstrate a business necessity for use of the [discriminatory employment practice] . . . . ‘The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any [discriminatory] impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential racial impact.’ ” (City and County of San Francisco v. Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, 989–990 [236 Cal.Rptr. 716], quoting Robinson v. Lorillard

Corp. (4th Cir. 1971) 444 F.2d 791, 798.)

• The federal Civil Rights Act of 1991 states that one of its purposes is “to codify the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424], and in other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) [109 S.Ct. 2115, 104 L.Ed.2d 733].” (Civil Rights Act of 1991, Pub.L. No. 102-166,

§ 3(2) (Nov. 21, 1991) 105 Stat. 1071, 1071.)

• Federal title VII provides that while business necessity is a defense to a claim of

disparate impact discrimination, “[a] demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination.” (42 U.S.C. § 2000e-2(k)(2).)

• “The touchstone is business necessity. If an employment practice which operates to exclude [a protected group] cannot be shown to be related to job performance, the practice is prohibited . . . Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.” (Griggs, supra, 401 U.S. at pp. 431–432.)
• “[T]he employer may defend its policy or practice by proving that it is ‘job related for the position in question and consistent with business necessity.’ Though the key terms have been used since Griggs, their meaning remains unclear.” (1 Lindemann and Grossman, Employment Discrimination Law (3d ed. 1996) Adverse Impact, p. 106, footnotes omitted.)
• “[T]here is no requirement that the challenged practice be ‘essential’ or ‘indispensable’ to the employer’s business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet……………………………………………………………………………………… ” (Wards

Cove Packing Co., Inc., supra, 490 U.S. at p. 659.) [Note: This portion of Wards Cove may have been superseded by the Civil Rights Act of 1991.]

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-E,

Defamation, ¶¶ 7:571, 7:581, 7:915 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-L, Invasion of Privacy, ¶ 7:915 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, § 2.90

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.21[4], 41.95[1] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[2][c] (Matthew Bender)

1 Lindemann and Grossman, Employment Discrimination Law (3d ed.) Adverse Impact, pp. 106–110; id. (2000 supp.) at pp. 62–64

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.23[4][d], 115.54[5], 115.102–115.103 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:25 (Thomson Reuters)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Employer Defenses- Rebuttal to Defense- Wrongful Termination Additional Info – 3

2504. Disparate Impact—Rebuttal to Business Necessity/Job Relatedness Defense

If [name of defendant] proves that the [employment practice/ selection policy] is necessary to [his/her/nonbinary pronoun/its] business, then the [employment practice/selection policy] is lawful unless [name of plaintiff] proves both of the following:

1. That there was an alternative [employment practice/ selection policy] that would have accomplished the business purpose equally well; and
2. That the alternative [employment practice/selection policy] would have had less adverse impact on [describe members of protected group—for example, “persons over the age of 40”].

New September 2003

Directions for Use

Federal title VII requires a plaintiff to demonstrate that the employer refused to adopt the alternative employment practice (see 42 U.S.C. § 2000e-2(K)(1)(A)(ii)). There are no published court opinions determining if a similar requirement exists under California law.

This instruction must be given if defendant asserts the defense of business necessity to a disparate impact employment discrimination claim. (See CACI No. 2503, Affırmative Defense—Business Necessity/Job Relatedness.)

Sources and Authority

• Justification for Disparate Impact. Cal. Code Regs., tit. 2, § 11010(b).
• Disparate Impact Under Federal Law. 42 U.S.C. § 2000e-2(k)(1)(A).
• “ ‘The test [of the business necessity defense] is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any [discriminatory] impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally

well with a lesser differential [discriminatory] impact.’ ” (City and County of San Francisco v. Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, 989–990 [236 Cal.Rptr. 716].)

• “[T]he standards established by the FEHC for evaluating a facially neutral selection criterion which has a discriminatory impact on a protected group are identical to federal standards under Title VII.” (City and County of San

Francisco, supra, 191 Cal.App.3d at p. 986.)

• “If an employer does then meet the burden of proving that its tests are ‘job related,’ it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable [discriminatory] effect, would also serve the employer’s legitimate interest in ‘efficient and trustworthy workmanship.’ ” (Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 425 [95

S.Ct. 2362, 45 L.Ed.2d 280], internal citation omitted.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch.5(I)-E,

Defamation, ¶¶ 7:581, 7:590, 7:591, 7:915 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-L, Invasion of Privacy, ¶ 7:915 (The Rutter Group)

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.21[2] (Matthew Bender)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[2][d] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.23[2][c] (Matthew Bender)

California Civil Practice: Employment Litigation § 2:26 (Thomson Reuters)

Employer Defenses- To Reasonable Accommodations- Wrongful Termination Additional Info – 3

Defenses to Reasonable Accommodations, Disability Discrimination

Defenses to Reasonable Accommodation for Disabilities in California: Overview, Legal Consequences, and Potential Problems in the Context of Wrongful Termination and Employment Law

Introduction:

In California, employers are legally obligated to provide reasonable accommodations to qualified employees with disabilities. However, there are certain defenses that employers can raise in cases where providing such accommodations would pose undue hardship, when there is a failure to engage in the interactive process, or when accommodation creates health and safety risks. Understanding these defenses is critical for both employers and employees. In this comprehensive overview, we will explore the legal framework surrounding these defenses, potential legal consequences for employers, and identify problems that may arise, supported by examples and detailed reasoning.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): The FEHA prohibits disability discrimination and mandates that employers with five or more employees provide reasonable accommodations to qualified individuals with disabilities. However, it acknowledges that accommodations are not required if they would impose an undue hardship, fundamentally alter the job, or create health and safety risks.

II. Legal Consequences:

A. Wrongful Termination Claims: Employees who believe they were wrongfully terminated due to failure to accommodate can bring legal claims against their employers. Successful claims can result in reinstatement, back pay, front pay, compensatory damages, punitive damages, and attorney’s fees.

B. Legal Defense: Employers can defend themselves against wrongful termination claims by asserting one or more of the following defenses:

1. Undue Hardship: Arguing that providing accommodation would cause significant difficulty or expense.
2. Failure to Engage in the Interactive Process: Demonstrating that the employee or employer did not actively participate in the interactive process to identify and implement accommodations.
3. Health and Safety Risk: Asserting that accommodating the employee would pose a direct threat to the health or safety of others in the workplace.

III. Potential Problems:

A. Defining Undue Hardship: Employers and employees may have differing interpretations of what constitutes undue hardship. This can lead to disputes and legal challenges when determining whether an accommodation is reasonable.

B. Failure to Engage in the Interactive Process: Both parties must actively engage in the interactive process to identify and implement appropriate accommodations. A breakdown in communication or unwillingness to participate can hinder the process and lead to disputes.

C. Assessing Health and Safety Risks: Determining when a disability accommodation poses a direct threat to health and safety can be challenging. Employers must base their decisions on objective evidence and assessments rather than assumptions.

IV. Examples:

1. Undue Hardship Example: An employee with a severe allergy requests that the office be made fragrance-free as a reasonable accommodation. The employer argues that this would impose an undue hardship as it would require significant changes and disruptions in the workplace. If the employer can provide evidence that the cost and disruption are indeed significant, they may have a valid defense against providing this accommodation.
2. Failure to Engage in the Interactive Process Example: An employee with a hearing impairment requests a sign language interpreter for meetings but does not actively engage with HR or the employer to discuss possible accommodations. If the employer can demonstrate that they made reasonable efforts to engage in the interactive process but the employee did not participate, this may serve as a defense against a wrongful termination claim.
3. Health and Safety Risk Example: An employee with a highly contagious illness requests to return to work in a crowded office environment despite posing a direct threat to the health and safety of coworkers. The employer may have a valid defense in this case, as accommodating the employee could indeed create significant health and safety risks for others.

Conclusion

In conclusion, understanding the defenses to reasonable accommodation for disabilities is essential for both employers and employees in California. While employers have a duty to accommodate disabled employees, they are not required to do so if it would result in undue hardship, if there is a failure to engage in the interactive process, or if health and safety risks are present. To mitigate risks and ensure compliance with the law, employers should carefully assess each accommodation request, actively engage in the interactive process, and make decisions based on objective evidence to avoid potential legal consequences and disputes.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Employer Defenses- Affirmative Defense- Wrongful Termination Additional Info – 3

2544. Disability Discrimination—Affirmative Defense—Health or Safety Risk

[Name of defendant] claims that [his/her/nonbinary pronoun/its] conduct was not discriminatory because, even with reasonable accommodations, [name of plaintiff] was unable to perform at least one essential job duty without endangering [[his/her/nonbinary pronoun] health or safety/ [or] [the health or safety of others]. To succeed on this defense, [name of defendant] must prove all of the following:

1. That [describe job duty] was an essential job duty;
2. That there was no reasonable accommodation that would have allowed [name of plaintiff] to perform this job duty without endangering [[his/her/nonbinary pronoun] health or safety/ [or] [the health or safety of others]; and
3. That [name of plaintiff]’s performance of this job duty would present an immediate and substantial degree of risk to [[him/her/ nonbinary pronoun]/ [or] others].

[However, it is not a defense to assert that [name of plaintiff] has a disability with a future risk, as long as the disability does not presently interfere with [his/her/nonbinary pronoun] ability to perform the job in a manner that will not endanger [him/her/nonbinary pronoun]/ [or] others].]

In determining whether [name of defendant] has proved this defense, factors that you may consider include the following:

1. The duration of the risk;
   1. The nature and severity of the potential harm;
   2. The likelihood that the potential harm would have occurred;
   3. How imminent the potential harm was; [and]
   4. Relevant information regarding [name of plaintiff]’s past work history[;/and]

[f.  [Specify other relevant factors].]

Your consideration of these factors should be based on a reasonable medical judgment that relies on the most current medical knowledge or on the best available objective evidence.

New September 2003; Revised May 2019, November 2019

Directions for Use

This instruction is based on the Fair Employment and Housing Council regulation

addressing the defense of health or safety risk. (See Cal. Code Regs., tit. 2,

§ 11067.) Give CACI No. 2543, Disability Discrimination—“Essential Job Duties” Explained, to instruct on when a job duty is essential.

If more than one essential job duty is alleged to involve a health or safety risk, pluralize the elements accordingly.

Give the optional paragraph following the elements if there is concern about a future risk. (See Cal. Code Regs., tit. 2, § 11067(d).)

The list of factors to be considered is not exclusive. (See Cal. Code Regs., tit. 2,

§ 11067(e).) Additional factors may be added according to the facts and circumstances of the case.

Sources and Authority

• Risk to Health or Safety. Government Code section 12940(a)(1).
• Risk to Health or Safety. Cal. Code Regs., tit. 2, § 11067(b)–(e).
• “FEHA’s ‘danger to self’ defense has a narrow scope; an employer must offer more than mere conclusions or speculation in order to prevail on the defense

. . . . As one court said, ‘[t]he defense requires that the employee face an “imminent and substantial degree of risk” in performing the essential functions of the job.’ An employer may not terminate an employee for harm that is merely potential . . . . In addition, in cases in which the employer is able to establish the ‘danger to self’ defense, it must also show that there are ‘no “available reasonable means of accommodation which could, without undue hardship to [the employer], have allowed [the plaintiff] to perform the essential job functions

. . . without danger to himself.” ’ ” (Wittkopf v. County of Los Angeles (2001) 90 Cal.App.4th 1205, 1218–1219 [109 Cal.Rptr.2d 543], internal citations omitted.)

• “An employer may refuse to hire persons whose physical handicap prevents them from performing their duties in a manner which does not endanger their health. Unlike the BFOQ defense, this exception must be tailored to the individual characteristics of each applicant . . . in relation to specific, legitimate job requirements . . . . [Defendant’s] evidence, at best, shows a possibility [plaintiff] might endanger his health sometime in the future. In the light of the strong policy for providing equal employment opportunity, such conjecture will not justify a refusal to employ a handicapped person.” (Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 798–799 [175 Cal.Rptr. 548], internal citations and footnote omitted.)
• “FEHA does not expressly address whether the act protects an employee whose disability causes him or her to make threats against coworkers. FEHA, however, does authorize an employer to terminate or refuse to hire an employee who poses an actual threat of harm to others due to a disability . . . .” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 169 [125 Cal.Rptr.3d 1] [idle threats against coworkers do not disqualify employee from job, but rather may provide legitimate, nondiscriminatory reason for discharging employee].)

FAIR EMPLOYMENT AND HOUSING ACT             CACI No. 2544

• “The employer has the burden of proving the defense of the threat to the health and safety of other workers by a preponderance of the evidence.” (Raytheon Co.

v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 1252 [261

Cal.Rptr. 197].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,

§§ 1045–1048

Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California Fair Employment And Housing Act (FEHA), ¶¶ 9:2297, 2297.1, 9:2402, 9:2402.1 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, § 2.111

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.97[1] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.54, 115.104 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:86 (Thomson Reuters)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Employer Defenses- Undue Hardshuip- Wrongful Termination Additional Info – 3

2545. Disability Discrimination—Affirmative Defense—Undue Hardship

[Name of defendant] claims that accommodating [name of plaintiff]’s disability would create an undue hardship to the operation of [his/her/ nonbinary pronoun/its] business. To succeed on this defense, [name of defendant] must prove that [an] accommodation[s] would create an

undue hardship because it would be significantly difficult or expensive, in light of the following factors:

1. The nature and cost of the accommodation[s];
2. [Name of defendant]’s ability to pay for the accommodation[s];
3. The type of operations conducted at the facility;
4. The impact on the operations of the facility;
5. The number of [name of defendant]’s employees and the relationship of the employees’ duties to one another;
6. The number, type, and location of [name of defendant]’s facilities; and
7. The administrative and financial relationship of the facilities to one another.

New September 2003; Revised November 2019, May 2020

Directions for Use

The issue of whether undue hardship is a true affirmative defense or whether the defendant only has the burden of coming forward with the evidence of hardship as a way of negating the element of plaintiff’s case concerning the reasonableness of an accommodation appears to be unclear. (See Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 733 [214 Cal.Rptr.3d 113].)

For an instruction in the religious creed context, see CACI No. 2561, Religious Creed Discrimination—Reasonable Accommodation—Affırmative Defense—Undue Hardship.

Sources and Authority

• Employer Duty to Provide Reasonable Accommodation. Government Code section 12940(m).
• “Undue Hardship” Defined. Government Code section 12926(u).
• “ ‘Undue hardship’ means ‘an action requiring significant difficulty or expense, when considered in light of the following factors: [¶] (1) The nature and cost of the accommodation needed. [¶] (2) The overall financial resources of the

FAIR EMPLOYMENT AND HOUSING ACT             CACI No. 2545

facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility. [¶] (3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities. [¶] (4) The type of operations, including the composition, structure, and functions of the workforce of the entity. [¶] (5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.’ (§ 12926, subd. (u).) ‘ “Whether a particular accommodation will impose an undue hardship for a particular employer is determined on a case by case basis” ’ and ‘is a multi-faceted, fact- intensive inquiry.’ ” (Atkins, supra, 8 Cal.App.5th at p. 733.)

• “[U]nder California law and the instructions provided to the jury, an employer must do more than simply assert that it had economic reasons to reject a plaintiff’s proposed reassignment to demonstrate undue hardship. An employer must show why and how asserted economic reasons would affect its ability to provide a particular accommodation.” (Atkins, supra, 8 Cal.App.5th at p. 734, original italics, internal citation omitted.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California Fair Employment And Housing Act (FEHA), ¶¶ 9:2250, 9:2345, 9:2366, 9:2367 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, § 2.80

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.51[4][b] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.35, 115.54, 115.100 (Matthew Bender)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Employer Defenses- Failure to Engage- Wrongful Termination Additional Info – 3

2546. Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process (Gov. Code, § 12940(n))

[Name of plaintiff] contends that [name of defendant] failed to engage in a good-faith interactive process with [him/her/nonbinary pronoun] to determine whether it would be possible to implement effective reasonable accommodations so that [name of plaintiff] [insert job requirements requiring accommodation]. In order to establish this claim, [name of plaintiff] must prove the following:

1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/ applied to [name of defendant] for a job/[describe other covered relationship to defendant]];
3. That [name of plaintiff] had [a] [select term to describe basis of limitations, e.g., physical condition] that was known to [name of defendant];
4. That [name of plaintiff] requested that [name of defendant] make reasonable accommodation for

[e.g., physical condition] so that [he/she/nonbinary pronoun] would be able to perform the essential job requirements;

• That [name of plaintiff] was willing to participate in an interactive process to determine whether reasonable accommodation could be made so that [he/she/nonbinary pronoun] would be able to perform the essential job requirements;
• That [name of defendant] failed to participate in a timely good- faith interactive process with [name of plaintiff] to determine whether reasonable accommodation could be made;

[7. That [name of defendant] could have made a reasonable accommodation when the interactive process should have taken place;]

• That [name of plaintiff] was harmed; and
• That [name of defendant]’s failure to engage in a good-faith interactive process was a substantial factor in causing [name of plaintiff]’s harm.

New December 2007; Revised April 2009, December 2009, May 2022

FAIR EMPLOYMENT AND HOUSING ACT             CACI No. 2546

Directions for Use

In elements 3 and 4, select a term to describe the source of the plaintiff’s limitations. It may be a statutory term such as “physical disability,” “mental disability,” or “medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such as “condition,” “disease,” or “disorder.” Or it may be a specific health condition such as “diabetes.”

Modify elements 3 and 4, as necessary, if the employer perceives the employee to have a disability. (See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61, fn. 21 [43 Cal.Rptr.3d 874].)

In element 4, specify the position at issue and the reason why some reasonable accommodation was needed. In element 5, you may add the specific accommodation requested, though the focus of this cause of action is on the failure to discuss, not the failure to provide.

For an instruction on a cause of action for failure to make reasonable accommodation, see CACI No. 2541, Disability Discrimination—Reasonable Accommodation—Essential Factual Elements. For an instruction defining “reasonable accommodation,” see CACI No. 2542, Disability Discrimination—“Reasonable Accommodation” Explained.

Bracketed element 7 reflects that there is a split of authority as to whether the employee must also prove that a reasonable accommodation was available. (Compare Shirvanyan v. Los Angeles Community College Dist. (2020) 59 Cal.App.5th 82, 87 [273 Cal.Rptr.3d 312] [“the availability of a reasonable accommodation is an essential element of an interactive process claim”] and Nadaf- Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 980–985 [83 Cal.Rptr.3d 190] [employee who brings a section 12940(n) claim bears the burden of proving a reasonable accommodation was available before the employer can be held liable under the statute] with Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424–425 [69 Cal.Rptr.3d 1] [jury’s finding that no reasonable accommodation was possible is not inconsistent with its finding of liability for refusing to engage in interactive process] and Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 243 [35 Cal.Rptr.3d 837] [if the employer’s failure to participate in good faith causes a breakdown in the interactive process, liability follows]; see Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018–1019 [93 Cal.Rptr.3d 338] [attempting to reconcile conflict].) See also verdict form CACI No. VF-2513, Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process.

Sources and Authority

• Good-Faith Interactive Process. Government Code section 12940(n).
  • Federal Interpretive Guidance Incorporated. Government Code section 12926.1(e).
  • Interactive Process. The Interpretive Guidance on title I of the Americans With

CACI No. 2546          FAIR EMPLOYMENT AND HOUSING ACT

Disabilities Act, title 29 Code of Federal Regulations Part 1630 Appendix.

• An employee may file a civil action based on the employer’s failure to engage in the interactive process. (Claudio, supra, 134 Cal.App.4th at p. 243.)
• “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.” (Gelfo, supra, 140 Cal.App.4th at p. 54, internal citations omitted.)
• “While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242 [206 Cal.Rptr.3d 841].)
• “FEHA requires an informal process with the employee to attempt to identify reasonable accommodations, not necessarily ritualized discussions.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379 [184 Cal.Rptr.3d 9].)
• “The point of the interactive process is to find reasonable accommodation for a disabled employee, or an employee regarded as disabled by the employer, in order to avoid the employee’s termination. Therefore, a pretextual termination of a perceived-as-disabled employee’s employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process.” (Moore, supra, 248 Cal.App.4th at pp. 243–244, original italics.)
• “FEHA’s reference to a ‘known’ disability is read to mean a disability of which the employer has become aware, whether because it is obvious, the employee has brought it to the employer’s attention, it is based on the employer’s own perception—mistaken or not—of the existence of a disabling condition or, perhaps as here, the employer has come upon information indicating the presence of a disability.” (Gelfo, supra, 140 Cal.App.4th at p. 61, fn. 21.)
• “Typically, the employee must initiate the process ‘unless the disability and resulting limitations are obvious.’ ” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169 [217 Cal.Rptr.3d

258].)

• “Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith. ‘Both employer and employee have the obligation “to keep communications open” and neither has “a right to obstruct the process.” [Citation.] “Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who

fails to participate in good faith.” [Citation.]’ ” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971–972 [181 Cal.Rptr.3d 553].)

• “[Employer] asserts that, if it had a duty to engage in the interactive process, the duty was discharged. ‘If anything,’ it argues, ‘it was [employee] who failed to engage in a good faith interactive process.’ [Employee] counters [employer] made up its mind before July 2002 that it would not accommodate [employee]’s limitations, and nothing could cause it reconsider that decision. Because the evidence is conflicting and the issue of the parties’ efforts and good faith is factual, the claim is properly left for the jury’s consideration.” (Gelfo, supra, 140 Cal.App.4th at p. 62, fn. 23.)
  • “None of the legal authorities that [defendant] cites persuades us that the Legislature intended that after a reasonable accommodation is granted, the interactive process continues to apply in a failure to accommodate context. . . . To graft an interactive process intended to apply to the determination of a reasonable accommodation onto a situation in which an employer failed to provide a reasonable, agreed-upon accommodation is contrary to the apparent intent of the FEHA and would not support the public policies behind that provision.” (A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 464 [100

Cal.Rptr.3d 449].)

• “[T]he verdicts on the reasonable accommodations issue and the interactive process claim are not inconsistent. They involve separate causes of action and proof of different facts. Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. ‘An employee may file a civil action based on the employer’s failure to engage in the interactive process.’ Failure to engage in this process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation. An employer may claim there were no available reasonable accommodations. But if it did not engage in a good faith interactive process, ‘it cannot be known whether an alternative job would have been found.’ The interactive process determines which accommodations are required. Indeed, the interactive process could reveal solutions that neither party envisioned.” (Wysinger, supra, 157 Cal.App.4th at pp. 424–425, internal citations omitted.)
  • “We disagree . . . with Wysinger’s construction of section 12940(n). We conclude that the availability of a reasonable accommodation (i.e., a modification or adjustment to the workplace that enables an employee to perform the essential functions of the position held or desired) is necessary to a section 12940(n) claim. [¶] Applying the burden of proof analysis in Green, supra, 42 Cal.4th 254, we conclude the burden of proving the availability of a reasonable accommodation rests on the employee.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 984–985.)
  • “We synthesize Wysinger, Nadaf-Rahrov, and Claudio with our analysis of the law as follows: To prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a

reasonable accommodation that would have been available at the time the interactive process should have occurred. An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because ‘ “ ‘[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have.    ’ ” ’ However, as the Nadaf-Rahrov

court explained, once the parties have engaged in the litigation process, to prevail, the employee must be able to identify an available accommodation the interactive process should have produced: ‘Section 12940[, subdivision](n), which requires proof of failure to engage in the interactive process, is the appropriate cause of action where the employee is unable to identify a specific, available reasonable accommodation while in the workplace and the employer fails to engage in a good faith interactive process to help identify one, but the employee is able to identify a specific, available reasonable accommodation through the litigation process.’ ” (Scotch, supra, 173 Cal.App.4th at pp.

1018–1019.)

• “Well-reasoned precedent supports [defendant’s] argument that, in order to succeed on a cause of action for failure to engage in an interactive process, ‘an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.’ ” (Shirvanyan, supra, 59 Cal.App.5th at p. 96.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1048

Chin, et al., California Practice Guide: Employment Litigation, Ch. 9-C, Disability Discrimination—California Fair Employment and Housing Act (FEHA),

¶¶ 9:2280–9:2285, 9:2345–9:2347 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, § 2.79

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.51[3][b] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.35[1][a] (Matthew Bender)

1 California Civil Practice: Employment Litigation, § 2:50 (Thomson Reuters)

Employer Defenses- Defense- Wrongful Termination Additional Info – 3

Defenses to Breaches of Implied Covenant of Good Faith and Fair Dealing

1. Legal Context of the Implied Covenant

• Nature of the Covenant: In California, every employment contract implicitly contains a covenant of good faith and fair dealing. This covenant mandates fair treatment in the execution of contractual obligations and rights.
• Relevance in Wrongful Termination: In wrongful termination cases, this covenant is often cited when an employee alleges that their dismissal was carried out in bad faith or unfairly deprived them of contract benefits.

2. Common Defenses Against Alleged Breaches

• At-Will Employment Doctrine: The primary defense is the assertion of California’s at-will employment principle, which allows employers to terminate employment for any legal reason, without being inherently in bad faith.
• Legitimate Business Reasons: Demonstrating that the termination or employment decision was based on legitimate business reasons (e.g., downsizing, poor performance) and not an intention to deprive the employee of benefits.
• Lack of Malice or Fraud: Arguing that there was no malicious intent or fraud involved in the decision-making process.
• Consistency in Policy Application: Showing that the employer’s actions were consistent with company policies and applied uniformly to all employees.

3. Examples and Case Studies

• Example 1: A company enforces a layoff due to economic downturn. If the layoffs are evenly applied and not used to specifically target certain employees unfairly, this can be a defense against a breach claim.
• Example 2: An employee is terminated for poor performance, backed by documented performance reviews. This documentation can be used to show that the termination was not in bad faith but a legitimate business decision.

4. Legal Consequences and Implications

• Avoidance of Liability: Successful defenses can lead to the dismissal of wrongful termination claims, saving the employer from significant liabilities.
• Setting Precedents: Strong defenses can set precedents for future cases, influencing how courts interpret the covenant in employment disputes.

5. Problems and Challenges

• Proving Legitimate Business Reasons: The burden to prove that a termination was due to legitimate business reasons can be challenging, especially if documentation and consistent policies are lacking.
• Balancing Interests: There’s a fine balance between an employer’s right to make business decisions and the employee’s right to fair treatment.
• Varying Interpretations: Courts may interpret the covenant and defenses differently, leading to inconsistent outcomes.

6. Conclusion

Defenses against breaches of the Implied Covenant of Good Faith and Fair Dealing in wrongful termination cases in California hinge on demonstrating legitimate, non-malicious reasons for employment decisions. The at-will employment doctrine plays a significant role, but it must be carefully balanced against the covenant’s requirements. Employers must navigate this complex legal landscape with thorough documentation and consistent policy application to successfully defend against such claims. The subjective nature of these cases and the variability in court interpretations present ongoing challenges in employment law.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

________________________

Additional Information

Defenses to Breaches of Implied Covenant of Good Faith and Fair Dealing in Wrongful Termination Cases in California:

Introduction:

The implied covenant of good faith and fair dealing is a fundamental concept in California employment law. It is an inherent part of every employment contract, whether written or oral, and imposes an obligation on both employers and employees to act in good faith and deal fairly with each other. In the context of wrongful termination, the breach of this covenant can give rise to legal consequences for employers. However, there are certain defenses that employers may raise to mitigate or defend against such claims.

1. Overview of the Implied Covenant of Good Faith and Fair Dealing: The implied covenant of good faith and fair dealing implies that employers and employees must not act in a manner that undermines the other party’s rights or benefits under the employment contract. In the context of wrongful termination, it means that employers cannot terminate an employee for arbitrary, capricious, or bad faith reasons, even if the employment contract is at-will.
2. Wrongful Termination Claims in California: To bring a wrongful termination claim in California, an employee must typically demonstrate one of the following:a. Violation of public policy. b. Breach of an implied employment contract. c. Breach of the implied covenant of good faith and fair dealing.
3. Common Defenses to Breach of Implied Covenant Claims: Employers facing claims of breach of the implied covenant of good faith and fair dealing in wrongful termination cases can employ various defenses to protect their interests:a. At-will Employment Doctrine: One of the primary defenses is the assertion that the employment relationship was at-will, meaning the employer had the right to terminate the employee at any time and for any reason, as long as it was not unlawful.Example: An employer argues that the employee was an at-will employee and, therefore, the termination was lawful and did not breach the implied covenant.b. Legitimate Business Reasons: Employers may argue that the termination was based on legitimate, non-discriminatory business reasons, such as poor performance, violations of company policies, or economic necessity.Example: An employer can provide evidence of an employee’s consistent poor performance as the reason for termination.c. Absence of Bad Faith: Employers may claim that they acted in good faith and without malice when making the termination decision, demonstrating that the decision was not made with an intent to harm the employee.Example: An employer can present documentation of a fair and thorough performance evaluation process leading to the termination decision.
4. Potential Problems and Challenges for Employers: Despite these defenses, there are potential problems and challenges employers may face when defending against a breach of implied covenant claim:a. Establishing Good Faith: Proving that the termination was in good faith can be challenging, as it often relies on subjective interpretations of the employer’s intent.b. Inconsistent Treatment: If an employer has not consistently enforced its policies or has treated other employees differently in similar situations, it may weaken their defense.c. Mixed Motive: If there is evidence of both legitimate business reasons and discriminatory intent, the defense becomes more complex.d. Public Policy Violation: If the termination violates a fundamental public policy, the at-will defense may not apply.

Conclusion:

In California, the implied covenant of good faith and fair dealing plays a crucial role in wrongful termination cases. While employers can raise defenses such as at-will employment and legitimate business reasons, the key is to demonstrate that the termination was not arbitrary or in bad faith. Employers should always seek legal counsel when facing such claims to navigate the complex legal landscape effectively.

_________________________

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2424. Affirmative Defense—Breach of the Implied Covenant of Good Faith and Fair Dealing—Good Faith Though Mistaken Belief

[Name of defendant] claims that [he/she/nonbinary pronoun/it] did not breach the duty to act fairly and in good faith because [he/she/nonbinary pronoun/it] believed that there was a legitimate and reasonable business purpose for the conduct.

To succeed, [name of defendant] must prove both of the following:

1. That

conduct was based on an honest belief that [insert alleged mistake]; and

• That, if true, [insert alleged mistake] would have been a legitimate and reasonable business purpose for the conduct.

New September 2003; Revised November 2019, May 2020

Directions for Use

In every contract, there is an implied promise that each party will not do anything to unfairly interfere with the right of any other party to receive the benefits of the contract. (Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658 [328 P.2d 198].) Give CACI No. 2423, Breach of Implied Covenant of Good Faith and Fair Dealing—Employment Contract—Essential Factual Elements, if the employee asserts a claim that the employee’s termination or other adverse employment action was in breach of this implied covenant. Give this instruction if the employer asserts the defense that an honest, though mistaken, belief does not constitute a breach.

Sources and Authority

• “[B]ecause the implied covenant of good faith and fair dealing requires the employer to act fairly and in good faith, an employer’s honest though mistaken belief that legitimate business reasons provided good cause for discharge, will negate a claim it sought in bad faith to deprive the employee of the benefits of the contract.” (Wilkerson v. Wells Fargo Bank (1989) 212 Cal.App.3d 1217, 1231 [261 Cal.Rptr. 185], internal citation omitted, disapproved on other grounds in Cotran v. Rollins Hudig Hall International, Inc. (1998) 17 Cal.4th 93, 96 [69

Cal.Rptr.2d 900, 948 P.2d 412].)

• “The jury was instructed that the neglect or refusal to fulfill a contractual obligation based on an honest, mistaken belief did not constitute a breach of the implied covenant.” (Luck v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 1, 26 [267 Cal.Rptr. 618].)
• “[F]oley does not preclude inquiry into an employer’s motive for discharging an employee ” (Seubert v. McKesson Corp. (1990) 223 Cal.App.3d 1514, 1521

[273 Cal.Rptr. 296], overruled on other grounds, Dore v. Arnold Worldwide, Inc.

CACI No. 2424                   WRONGFUL TERMINATION

(2006) 39 Cal.4th 384, 389 [46 Cal.Rptr.3d 668, 139 P.3d 56].)

• “[T]he jury was asked to determine in its special verdict whether appellants had a legitimate reason to terminate [plaintiff]’s employment and whether appellants acted in good faith on an honest but mistaken belief that they had a legitimate business reason to terminate [plaintiff]’s employment.” (Seubert, supra, 223 Cal.App.3d at p. 1521 [upholding jury instruction].)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 4-A, Employment Presumed At Will, ¶ 4:5 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch.4-C, “Good Cause” for Termination, ¶ 4:271 (The Rutter Group)

10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful Termination and Discipline, § 100.30 (Matthew Bender)

Employer Defenses- Bona fide Occupational Qualification – Wrongful Termination Additional Info – 3

Bona fide Occupational Qualification

Bona Fide Occupational Qualification (BFOQ) is a legal doctrine within employment law in the United States, including California, that allows employers to make certain employment decisions based on protected characteristics like gender, religion, or age, when such characteristics are reasonably necessary for the normal operation of a particular business or job. The BFOQ defense can be used by employers to justify actions that would otherwise be considered discriminatory under state and federal anti-discrimination laws.

In the state of California, the concept of BFOQ is governed by the California Fair Employment and Housing Act (FEHA) and the California Labor Code, which mirror federal laws such as Title VII of the Civil Rights Act of 1964. Here is an extensive overview of BFOQ as a defense to disparate treatment in wrongful termination cases in California:

1. Legal Basis for BFOQ:

• BFOQ is recognized under both federal and California state law as an exception to the general prohibition against employment discrimination based on protected characteristics.
• It is codified in California under FEHA (Government Code Sections 12940 and 12941) and the California Labor Code (Section 12941).

2. Application of BFOQ:

• The BFOQ defense applies in limited and specific circumstances where a protected characteristic is reasonably necessary to perform the job or maintain the normal operation of the business.
• The burden of proof rests with the employer to demonstrate that the BFOQ is essential for the job or business operations.

3. Examples of BFOQ:

• Gender: For certain jobs in the entertainment industry, casting based on gender (e.g., a female actor for a female role) may be considered a BFOQ.
• Religion: A religious organization may require employees to adhere to specific religious beliefs or practices.
• National Origin: Airlines may have height and weight requirements for flight attendants, as long as they are necessary for safety reasons.

4. Problems and Challenges:

• Overuse of BFOQ: One challenge is that employers might misuse BFOQ defenses to justify discriminatory practices when they are not genuinely necessary for the job or business.
• Proving Necessity: Employers must provide strong evidence that the protected characteristic is indeed essential for the job or business, which can be difficult to establish.
• Balancing Rights: BFOQ may conflict with employees’ rights to be free from discrimination, creating a tension between individual rights and business necessity.

5. Case Example:

• Imagine a fitness company in California that specializes in women’s health and fitness programs. The company only hires female trainers and support staff because it believes that having a female-only environment is crucial to its business model. A male applicant who is denied employment files a complaint alleging gender discrimination.
• The fitness company may assert the BFOQ defense, arguing that gender is a bona fide occupational qualification for the positions because it is essential to creating a comfortable and effective environment for its female clients.
• The court would then evaluate whether the company’s use of gender as a qualification is reasonable and necessary for the business to function. If it is found to be so, the company might prevail in its defense.

Conclusion

In conclusion, BFOQ is a legally recognized defense to disparate treatment in wrongful termination cases in California, but its application is narrowly construed and subject to rigorous scrutiny. Employers must demonstrate a legitimate and essential connection between the protected characteristic and the job or business operations. The use of BFOQ should be carefully considered and documented to avoid legal challenges, as it can be a complex and contentious issue within employment law.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

Jury Instructions

_______________________________

[Name of defendant] claims that [his/her/nonbinary pronoun/its] decision to
[discharge/[other adverse employment action]] [name of plaintiff] was lawful
because [he/she/nonbinary pronoun/it] was entitled to consider [protected
status—for example, race, gender, or age] as a job requirement. To
succeed, [name of defendant] must prove all of the following:

1. That the job requirement was reasonably necessary for the
   operation of [name of defendant]’s business;
2. That [name of defendant] had a reasonable basis for believing that
   substantially all [members of protected group] are unable to safely
   and efficiently perform that job;
3. That it was impossible or highly impractical to consider whether
   each [applicant/employee] was able to safely and efficiently
   perform the job; and
4. That it was impossible or highly impractical for [name of
   defendant] to rearrange job responsibilities to avoid using
   [protected status] as a job requirement.
5.  

• Bona fide Occupational Qualification. Government Code section 12940(a)(1).
• Bona fide Occupational Qualification. Cal. Code Regs., tit. 2, § 7286.7(a).
• Bona fide Occupational Qualification Under Federal Law. 42 U.S.C. § 2000e-
  2(e)(1).
• The BFOQ defense is a narrow exception to the general prohibition on
  discrimination. (Bohemian Club v. Fair Employment & Housing Com. (1986)
  187 Cal.App.3d 1, 19 [231 Cal.Rptr. 769]; International Union, United
  Automobile, Aerospace and Agricultural Implement Workers of America, UAW v.
  Johnson Controls, Inc. (1991) 499 U.S. 187, 201 [111 S.Ct. 1196, 113 L.Ed.2d
  158].)
• “ ‘[I]n order to rely on the bona fide occupational qualification exception an
  employer has the burden of proving that he had reasonable cause to believe, that
  is, a factual basis for believing, that all or substantially all women would be
  1513
  unable to perform safely and efficiently the duties of the job involved.’ ”
  (Bohemian Club, supra, 187 Cal.App.3d at p. 19, quoting Weeks v. Southern Bell
  Telephone & Telegraph Co. (5th Cir. 1969) 408 F.2d 228, 235.)
• “First, the employer must demonstrate that the occupational qualification is
  ‘reasonably necessary to the normal operation of [the] particular business.’
  Secondly, the employer must show that the categorical exclusion based on [the]
  protected class characteristic is justified, i.e., that ‘all or substantially all’ of the
  persons with the subject class characteristic fail to satisfy the occupational
  qualification.” (Johnson Controls, Inc. v. Fair Employment & Housing Com.
  (1990) 218 Cal.App.3d 517, 540 [267 Cal.Rptr. 158], quoting Weeks, supra, 408
  F.2d at p. 235.)
• “Even if an employer can demonstrate that certain jobs require members of one
  sex, the employer must also ‘bear the burden of proving that because of the
  nature of the operation of the business they could not rearrange job
  responsibilities . . .’ in order to reduce the BFOQ necessity.” (Johnson Controls,
  Inc., supra, 218 Cal.App.3d at p. 541; see Hardin v. Stynchcomb (11th Cir. 1982)
  691 F.2d 1364, 1370–1371.)
• “Alternatively, the employer could establish that age was a legitimate proxy for
  the safety-related job qualifications by proving that it is ‘impossible or highly
  impractical’ to deal with the older employees on an individualized basis.”
  (Western Airlines, Inc. v. Criswell (1985) 472 U.S. 400, 414–415 [105 S.Ct.
  2743, 86 L.Ed.2d 321], internal citation and footnote omitted.)
• “The Fair Employment and Housing Commission has interpreted the BFOQ
  defense in a manner incorporating all of the federal requirements necessary for
  its establishment. . . . [¶] The standards of the Commission are . . . in harmony
  with federal law regarding the availability of a BFOQ defense.” (Bohemian
  Club, supra, 187 Cal.App.3d at p. 19.)
• “By modifying ‘qualification’ with ‘occupational,’ Congress narrowed the term to
  qualifications that affect an employee’s ability to do the job.” (International
  Union, United Automobile, Aerospace and Agricultural Implement Workers of
  America, UAW, supra, 499 U.S. at p. 201.)
  Secondary Sources
  8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1032,
  1033
  Chin et al., California Practice Guide: Employment Litigation, Ch.9-C, California
  Fair Employment and Housing Act (FEHA), ¶¶ 9:2380, 9:2382, 9:2400, 9:2430 (The
  Rutter Group)
  1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Sexual
  Harassment, §§ 2.91–2.94
  2 Wilcox, California Employment Law, Ch. 41, Civil Actions Under Equal
  Employment Opportunity Laws, §§ 41.94[3], 41.108 (Matthew Bender)
  11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
  CACI No. 2501 FAIR EMPLOYMENT AND HOUSING ACT
  1514
  Discrimination, §§ 115.54[4], 115.101 (Matthew Bender)
  California Civil Practice: Employment Litigation § 2:84 (Thomson Reuters)

Employer Defenses- Essential Job duties- Wrongful Termination Additional Info – 3

Essential Job Duties , Disability Discrimination

Essential Job Duties and Disabilities in California: Overview, Legal Consequences, and Potential Problems in the Context of Wrongful Termination and Employment Law

Introduction:

Understanding the concept of essential job duties in the context of disabilities is crucial for employers and employees in California. Employers have a legal obligation to reasonably accommodate employees with disabilities, but there are limitations based on the essential functions of the job. Failure to navigate this complex area of employment law can lead to discrimination claims, including wrongful termination. In this comprehensive overview, we will explore the legal framework surrounding essential job duties, potential legal consequences for employers, and identify problems that may arise, supported by examples and detailed reasoning.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): The FEHA prohibits disability discrimination and requires employers with five or more employees to provide reasonable accommodations to qualified individuals with disabilities. However, it recognizes that accommodations are not required if they would impose an undue hardship or fundamentally alter the nature of the job.

B. Americans with Disabilities Act (ADA): The ADA is a federal law that also mandates reasonable accommodations for qualified individuals with disabilities but applies to employers with 15 or more employees. It shares the concept of essential job functions with the FEHA.

C. Essential Job Functions: Essential job functions refer to the fundamental duties of a job that an employee must be able to perform with or without reasonable accommodation. Identifying these functions is critical in determining whether an accommodation is required or if an undue hardship exists.

II. Legal Consequences:

A. Wrongful Termination Claims: Employees who believe they were wrongfully terminated due to disability discrimination can bring legal claims against their employers. Successful claims can result in reinstatement, back pay, front pay, compensatory damages, punitive damages, and attorney’s fees.

B. Legal Defense: Employers can defend themselves against wrongful termination claims by demonstrating that the terminated employee could not perform the essential job functions even with reasonable accommodation.

III. Potential Problems:

A. Identifying Essential Job Functions: Employers and employees may disagree on what constitutes an essential job function. This can lead to disputes and legal challenges when determining whether an accommodation is required or reasonable.

B. Inconsistent Enforcement: Employers must consistently apply their policies regarding essential job functions. Inconsistencies can be used as evidence of discriminatory intent.

C. Unwarranted Assumptions: Employers may make assumptions about an employee’s ability to perform essential job functions based on their disability. These assumptions can lead to wrongful termination claims if not supported by concrete evidence.

IV. Examples:

1. Identifying Essential Job Functions Example: A paralegal in a law firm is required to draft legal documents and communicate with clients and attorneys. The employer argues that drafting documents is an essential job function, and a paralegal with a severe writing disability is terminated because they cannot perform this task. However, if the paralegal can demonstrate that they can communicate effectively with clients and attorneys through other means (e.g., dictation software), they may have a strong wrongful termination claim.
2. Inconsistent Enforcement Example: An employer grants telecommuting as a reasonable accommodation for one employee with a mobility impairment but denies the same request for another employee with a similar impairment. This inconsistency can lead to legal challenges, as both employees are requesting the same accommodation for the same reason.

Conclusion

In conclusion, understanding essential job duties in the context of disabilities is essential for employers and employees in California. While employers have a duty to reasonably accommodate disabled employees, they are not required to do so if it would fundamentally alter the job or impose undue hardship. To mitigate risks and ensure compliance with the law, employers should have clear job descriptions that identify essential job functions, consistently apply their policies, and engage in the interactive process with employees to determine appropriate accommodations when necessary.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2543. Disability Discrimination—“Essential Job Duties” Explained (Gov. Code, §§ 12926(f), 12940(a)(1))

In deciding whether a job duty is essential, you may consider, among other factors, the following:

1. Whether the reason the job exists is to perform that duty;
2. Whether there is a limited number of employees available who can perform that duty;
3. Whether the job duty is highly specialized so that the person currently holding the position was hired for the person’s expertise or ability to perform the particular duty.

Evidence of whether a particular duty is essential includes, but is not limited to, the following:

1. [Name of defendant]’s judgment as to which functions are essential;
2. Written job descriptions prepared before advertising or interviewing applicants for the job;
3. The amount of time spent on the job performing the duty;
4. The consequences of not requiring the person currently holding the position to perform the duty;
5. The terms of a collective bargaining agreement;
6. The work experiences of past persons holding the job;
7. The current work experience of persons holding similar jobs;
8. Reference to the importance of the job in prior performance reviews.

“Essential job duties” do not include the marginal duties of the position. “Marginal duties” are those that, if not performed would not eliminate the need for the job, or those that could be readily performed by another employee, or those that could be performed in another way.

New September 2003; Revoked June 2013; Restored and Revised December 2013; Revised May 2020

Directions for Use

Give this instruction with CACI No. 2540, Disability Discrimination—Disparate Treatment—Essential Factual Elements, or CACI No. 2541, Disability Discrimination—Reasonable Accommodation—Essential Factual Elements, or both,

if it is necessary to explain what is an “essential job duty.” (See Gov. Code,

§§ 12926(f), 12940(a)(1); see also Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 743–744 [151 Cal.Rptr.3d 292].) While the employee has the burden to prove that the employee can perform essential job duties, with or without reasonable accommodation, it is unresolved which party has the burden of proving that a job duty is essential. (See Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 972–973 [150 Cal.Rptr.3d 385].)

Sources and Authority

• Ability to Perform Essential Duties. Government Code section 12940(a)(1).
• “Essential Functions” Defined. Government Code section 12926(f).
• Evidence of Essential Functions. 2 California Code of Regulations section 11065(e)(2).
• Marginal Functions. 2 California Code of Regulations section 11065(e)(3).
• “ ‘ “Essential functions” means the fundamental job duties of the employment position the individual with a disability holds or desires. “Essential functions” does not include the marginal functions of the position.’ ‘ “Marginal functions” of an employment position are those that, if not performed, would not eliminate the need for the job or that could be readily performed by another employee or that could be performed in an alternative way.’ ‘A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: [¶] (A) . . . [T]he reason the position exists is to perform that function. [¶] (B) . . . [T]he limited number of employees available among whom the performance of that job function can be distributed. [¶] [And]

(C) . . . the incumbent in the position is hired for his or her expertise or ability to perform the particular [highly specialized] function.’ ” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373 [184 Cal.Rptr.3d 9], internal citations omitted.)

• “Evidence of ‘essential functions’ may include the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the consequences of not requiring employees to perform the function, the terms of a collective bargaining agreement, the work experiences of past incumbents in the job, and the current work experience of incumbents in similar jobs.” (Atkins

v. City of Los Angeles (2017) 8 Cal.App.5th 696, 717–718 [214 Cal.Rptr.3d

113].)

• “The trial court’s essential functions finding is also supported by the evidence presented by defendant corresponding to the seven categories of evidence listed in [Government Code] section 12926(f)(2). ‘Usually no one listed factor will be dispositive . . . .’ ” (Lui, supra, 211 Cal.App.4th at p. 977.)
• “The question whether plaintiffs could perform the essential functions of a position to which they sought reassignment is relevant to a claim for failure to accommodate under section 12940, subdivision (m), and to a claim for failure to engage in the interactive process under section 12940, subdivision (n).” (Atkins, supra, 8 Cal.App.5th at p. 717.)

• “The identification of essential job functions is a ‘highly fact-specific inquiry.’ ” (Lui, supra, 211 Cal.App.4th at p. 971.)
• “It is clear that plaintiff bore the burden of proving ‘that he or she is a qualified individual under the FEHA (i.e., that he or she can perform the essential functions of the job with or without reasonable accommodation).’ It is less clear whether that burden included the burden of proving what the essential functions of the position are, rather than just plaintiff’s ability to perform the essential functions. Under the ADA, a number of federal decisions have held that ‘[a]lthough the plaintiff bears the ultimate burden of persuading the fact finder that he can perform the job’s essential functions, . . . “an employer who disputes the plaintiff’s claim that he can perform the essential functions must put forth evidence establishing those functions.” [Citation.]’ . . . Arguably, plaintiff’s burden of proving he is a qualified individual includes the burden of proving which duties are essential functions of the positions he seeks. Ultimately, we need not and do not decide in the present case which party bore the burden of proof on the issue at trial . . . .” (Lui, supra, 211 Cal.App.4th at pp. 972–973, internal citations omitted.)
• “[R]equiring employers to eliminate an essential function of a job to accommodate a disabled employee ‘would be at odds with the definition of the employee’s prima facie case’ under FEHA. The employee’s burden includes ‘showing he or she can perform the essential functions of the job with accommodation, not that an essential function can be eliminated altogether to suit his or her restrictions.’ ” (Atkins, supra, 8 Cal.App.5th at p. 720.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,

§§ 1045–1049

Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California Fair Employment and Housing Act (FEHA), ¶¶ 9:2247, 9:2247.1, 9:2247.2, 9:2402–9:2402.1 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, § 2.79

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.97[1] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.22, 115.54, 115.104 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:86 (Thomson Reuters)

Employer Defenses- Avoidable Consequences- Wrongful Termination Additional Info – 3

Avoidable Consequences Defense to Sexual Harassment

Avoidable Consequences Defense to Sexual Harassment in the Context of Wrongful Termination and Employment Law in California

Introduction:

Sexual harassment is a serious issue in the workplace, and California, like many other states, has strict laws in place to protect employees from such behavior. When a supervisor is accused of sexual harassment, it can lead to not only civil liability but also potential criminal charges. In the context of wrongful termination and employment law in California, the “avoidable consequences” defense is a legal argument that employers may use to mitigate their liability in cases involving allegations of sexual harassment by a supervisor. This defense asserts that the victim of harassment failed to take reasonable steps to prevent or mitigate the harm they suffered. In this overview, we will examine the “avoidable consequences” defense, its legal implications, potential problems that can arise, and provide examples to illustrate its application.

I. The Avoidable Consequences Defense:

The “avoidable consequences” defense is grounded in the legal principle that an injured party has a duty to mitigate their damages. In the context of sexual harassment, it argues that the victim failed to take reasonable steps to avoid or lessen the harm they suffered. California law recognizes this defense, but its application can be complex and highly fact-dependent.

II. Legal Implications: A. Reasonable Steps:

To successfully assert the avoidable consequences defense in California, the employer must demonstrate that the victim of sexual harassment did not take reasonable steps to address the issue. Reasonable steps may include:

1. Reporting the harassment to the appropriate channels within the company.
2. Utilizing any available internal complaint procedures or grievance mechanisms.
3. Seeking legal advice or counseling to cope with the harassment.
4. Taking advantage of anti-harassment training or education provided by the employer.

B. Burden of Proof:

The burden of proof rests on the employer to establish that the victim failed to take reasonable steps. They must demonstrate that the victim’s actions or inactions were a substantial factor contributing to their own harm. This burden is significant and often requires a careful examination of the facts and circumstances surrounding the case.

C. Causation:

The employer must also establish a causal connection between the victim’s failure to take reasonable steps and the harm suffered. They must show that if the victim had taken such steps, the harm could have been avoided or mitigated.

III. Problems that Could Arise:

A. Subjectivity: One problem with the avoidable consequences defense is that it can be highly subjective. What may be considered reasonable steps for one person may not be the same for another. This subjectivity can lead to disputes over whether the victim’s actions were genuinely unreasonable.

B. Retaliation Claims: Victims of sexual harassment may fear retaliation if they report the harassment, which can deter them from taking immediate action. This fear can complicate the employer’s argument that the victim failed to take reasonable steps.

C. Lack of Awareness: In some cases, victims may not be fully aware of their rights or the company’s policies regarding harassment. This lack of awareness can affect their ability to take appropriate action.

IV. Examples:

1. Example of Successful Avoidable Consequences Defense: Imagine a scenario where an employee is subjected to inappropriate comments by their supervisor. The victim does not report the harassment to HR or any company authority, nor do they utilize any available internal procedures. In this case, if the employer can show that the victim’s failure to report the harassment allowed it to continue and worsen, they may successfully assert the avoidable consequences defense.
2. Example of Unsuccessful Avoidable Consequences Defense: Consider a situation where an employee repeatedly reports sexual harassment to HR, but the company fails to take any action to stop it. Despite the victim’s diligent efforts, the harassment continues. In this case, it would be challenging for the employer to argue that the victim failed to take reasonable steps to avoid the consequences.

Conclusion

In conclusion, the avoidable consequences defense in sexual harassment cases in California hinges on whether the victim took reasonable steps to prevent or mitigate the harm they suffered. While it is a valid defense, its application can be complex, and it must meet a high burden of proof. Employers must be cautious when relying on this defense, as it may not always absolve them of liability, and it can be subject to various challenges and nuances based on the specific facts of each case.

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.

2526. Affirmative Defense—Avoidable Consequences Doctrine (Sexual Harassment by a Supervisor)

If [name of plaintiff] proves that [name of supervisor] sexually harassed [him/her/nonbinary pronoun], [name of employer defendant] is responsible for [name of plaintiff]’s harm caused by the harassment. However, [name of employer defendant] claims that [name of plaintiff] could have avoided some or all of the harm with reasonable effort. To succeed, [name of employer defendant] must prove all of the following:

1. That [name of employer defendant] took reasonable steps to prevent and correct workplace sexual harassment;
2. That [name of plaintiff] unreasonably failed to use the preventive and corrective measures for sexual harassment that [name of employer defendant] provided; and
3. That the reasonable use of [name of employer defendant]’s procedures would have prevented some or all of [name of plaintiff]’s harm.

You should consider the reasonableness of [name of plaintiff]’s actions in light of the circumstances facing [him/her/nonbinary pronoun] at the time, including [his/her/nonbinary pronoun] ability to report the conduct without facing undue risk, expense, or humiliation.

If you decide that [name of employer defendant] has proved this claim, you should not include in your award of damages the amount of damages that [name of plaintiff] could have reasonably avoided.

New April 2004; Revised December 2011, December 2015, May 2020

Directions for Use

Give this instruction if the employer asserts the affirmative defense of “avoidable consequences.” The essence of the defense is that the employee could have avoided part or most of the harm had the employee taken advantage of procedures that the employer had in place to address sexual harassment in the workplace. The

avoidable-consequences doctrine is a defense only to damages, not to liability. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1045 [6 Cal.Rptr.3d 441, 79 P.3d 556].) For other instructions that may also be given on failure to mitigate damages generally, see CACI No. 3963, Affırmative Defense—Employee’s Duty to Mitigate Damages, and CACI No. 3930, Mitigation of Damages (Personal Injury).

Whether this defense may apply to claims other than for supervisor sexual harassment has not been clearly addressed by the courts. It has been allowed against a claim for age discrimination in a constructive discharge case. (See Rosenfeld v.

Abraham Joshua Heschel Day School, Inc. (2014) 226 Cal.App.4th 886, 900–901

[172 Cal.Rptr.3d 465].)

Sources and Authority

• “[W]e conclude that under the FEHA, an employer is strictly liable for all acts of sexual harassment by a supervisor. But strict liability is not absolute liability in the sense that it precludes all defenses. Even under a strict liability standard, a plaintiff’s own conduct may limit the amount of damages recoverable or bar recovery entirely.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1042, internal citations omitted.)
  • “We emphasize that the defense affects damages, not liability. An employer that has exercised reasonable care nonetheless remains strictly liable for harm a sexually harassed employee could not have avoided through reasonable care. The avoidable consequences doctrine is part of the law of damages; thus, it affects only the remedy available. If the employer establishes that the employee, by taking reasonable steps to utilize employer-provided complaint procedures, could have caused the harassing conduct to cease, the employer will nonetheless remain liable for any compensable harm the employee suffered before the time at which the harassment would have ceased, and the employer avoids liability only for the harm the employee incurred thereafter.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1045, internal citation omitted.)
  • “Under the avoidable consequences doctrine as recognized in California, a person injured by another’s wrongful conduct will not be compensated for damages that the injured person could have avoided by reasonable effort or expenditure. The reasonableness of the injured party’s efforts must be judged in light of the situation existing at the time and not with the benefit of hindsight. ‘The standard by which the reasonableness of the injured party’s efforts is to be measured is not as high as the standard required in other areas of law.’ The defendant bears the burden of pleading and proving a defense based on the avoidable consequences doctrine.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1043, internal citations omitted.)
  • “Although courts explaining the avoidable consequences doctrine have sometimes written that a party has a ‘duty’ to mitigate damages, commentators have criticized the use of the term ‘duty’ in this context, arguing that it is more accurate to state simply that a plaintiff may not recover damages that the plaintiff could easily have avoided.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1043, internal citations omitted.)
  • “We hold . . . that in a FEHA action against an employer for hostile environment sexual harassment by a supervisor, an employer may plead and prove a defense based on the avoidable consequences doctrine. In this particular context, the defense has three elements: (1) the employer took reasonable steps to prevent and correct workplace sexual harassment; (2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and (3) reasonable use of the employer’s procedures would

have prevented at least some of the harm that the employee suffered.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1044.)

• “This defense will allow the employer to escape liability for those damages, and only those damages, that the employee more likely than not could have prevented with reasonable effort and without undue risk, expense, or humiliation, by taking advantage of the employer’s internal complaint procedures appropriately designed to prevent and eliminate sexual harassment.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1044, internal citations omitted.)
• “If the employer establishes that the employee, by taking reasonable steps to utilize employer-provided complaint procedures, could have caused the harassing conduct to cease, the employer will nonetheless remain liable for any compensable harm the employee suffered before the time at which the harassment would have ceased, and the employer avoids liability only for the harm the employee incurred thereafter.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1045, internal citations omitted.)
• “We stress also that the holding we adopt does not demand or expect that employees victimized by a supervisor’s sexual harassment must always report such conduct immediately to the employer through internal grievance mechanisms. The employer may lack an adequate antiharassment policy or adequate procedures to enforce it, the employer may not have communicated the policy or procedures to the victimized employee, or the employee may reasonably fear reprisal by the harassing supervisor or other employees. Moreover, in some cases an employee’s natural feelings of embarrassment, humiliation, and shame may provide a sufficient excuse for delay in reporting acts of sexual harassment by a supervisor.” (State Dept. of Health Services, supra, 31 Cal.4th at p. 1045.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1798

Chin et al., California Practice Guide: Employment Litigation, Ch. 10-D, Employer Liability For Workplace Harassment, ¶¶ 10:360, 10:361, 10:365–10:367, 10:371, 10:375 (The Rutter Group)

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, §§ 41.81[7][c], 41.92A (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.36[2][a], 115.54[3] (Matthew Bender)