Law Offices of John Michael Jensen

Labor & Employment Law

California’s labor and employment laws are among the most comprehensive and protective in the United States. They cover a wide range of topics from minimum wage requirements to anti-discrimination laws, and they often provide greater protections than federal labor laws. Here’s an overview of some key areas of California labor and employment law:

1. Wage and Hour Laws:
   • Minimum Wage: California has a higher minimum wage than the federal standard, with annual increases until it reaches a set amount statewide.
   • Overtime Pay: Non-exempt employees are entitled to overtime pay for hours worked over 8 in a day or 40 in a week, as well as for the first 8 hours on the seventh consecutive day of work in a workweek, and double time for hours worked over 12 in a day or over 8 on the seventh consecutive day of work.
   • Meal and Rest Breaks: Employees are entitled to rest breaks and unpaid meal periods after a certain number of hours worked.
2. Workplace Safety:
   • Cal/OSHA: The California Occupational Safety and Health Act provides workers with protections related to workplace safety and health.
   • Injury and Illness Prevention Program: Employers are required to have a written program to identify and prevent workplace hazards.
3. Leave Entitlements:
   • Paid Sick Leave: Employers are required to provide paid sick leave to most employees.
   • Family Leave: California provides for more expansive family leave rights than the federal Family and Medical Leave Act (FMLA), including the California Family Rights Act (CFRA) which offers protected leave for a wider variety of family care issues.
   • Pregnancy and Parental Leave: There are specific laws protecting the rights of pregnant employees and new parents, including the right to take leave for childbirth and related conditions.
4. Anti-Discrimination and Harassment:
   • Fair Employment and Housing Act (FEHA): It is illegal for employers to discriminate against employees based on protected characteristics such as race, religion, sex, gender identity, national origin, disability, age, and more. FEHA also requires employers to take reasonable steps to prevent discrimination and harassment in the workplace.
5. Workers’ Compensation:
   • Employers are required to have workers’ compensation insurance to cover injuries or illnesses that occur as a result of work.
6. Employee Classification:
   • Laws govern the classification of workers as either employees or independent contractors, with significant implications for rights and benefits. California applies the “ABC test” to determine the status of workers in many situations.
7. Privacy Rights:
   • California recognizes a right to privacy, which can affect how employers monitor employees, conduct drug tests, or manage personal data.
8. Layoffs and Closures:
   • The California Worker Adjustment and Retraining Notification (WARN) Act requires employers to give a 60-day notice before mass layoffs, relocations, or plant closures.
9. Immigrant Protections:
   • State law provides certain protections for immigrant workers and limits the degree to which employers can engage in immigration enforcement.
10. Equal Pay:
    • The California Equal Pay Act requires employers to pay equal wages to employees of the opposite sex for work that is substantially similar when viewed as a composite of skill, effort, and responsibility.
11. Retaliation Protections:
    • Employees are protected from retaliation for exercising their rights under various labor and employment laws.
12. Labor Relations:
    • California law also covers the right to unionize and engage in collective bargaining.

Compliance with California labor and employment law is critical for employers, as violations can result in significant penalties and litigation. Because California laws are frequently updated and can vary by city and county, employers and employees should stay informed about the specific laws that apply to them. It’s also common for local ordinances to provide additional protections beyond state law, such as higher minimum wages or additional paid sick leave.

Violations of Labor & Employment Law

Common or Typical Violations

Violations of California’s labor and employment laws can be varied and numerous due to the comprehensive nature of the legal protections afforded to employees in the state. Here are some typical violations and how plaintiffs’ attorneys may address them:

1. Wage and Hour Violations:
   • Failure to Pay Minimum Wage: Employers must adhere to California’s minimum wage, which is higher than the federal minimum wage. Plaintiffs’ attorneys may seek back pay and additional penalties.
   • Misclassification of Employees: Misclassifying employees as independent contractors to avoid providing benefits and paying overtime is a common issue. Attorneys may pursue reclassification and compensation for unpaid wages and benefits.
   • Overtime Pay Violations: Not paying required overtime rates for hours worked over the standard 40-hour workweek or 8-hour workday can lead to claims for unpaid overtime compensation.
   • Meal and Rest Break Violations: Failure to provide mandated breaks can result in penalties, with employees entitled to one hour of pay for each day a rest or meal period was not provided.
2. Discrimination and Harassment:
   • Workplace Discrimination: Discriminating against employees based on protected characteristics can result in lawsuits seeking compensatory damages, punitive damages, and injunctive relief to prevent further discrimination.
   • Sexual Harassment: Unwanted sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature can lead to lawsuits. Attorneys often pursue both compensatory and punitive damages.
3. Wrongful Termination:
   • Retaliation: Terminating an employee for filing a workers’ compensation claim, complaining about harassment, or other protected activities can result in a claim for wrongful termination.
   • Constructive Dismissal: Forcing an employee to resign by creating intolerable working conditions can be treated as wrongful termination.
4. Safety Violations:
   • Unsafe Working Conditions: Violations of California’s Occupational Safety and Health Act (Cal/OSHA) regulations can result in legal action and the seeking of injunctive relief to improve workplace safety.
5. Leave Violations:
   • Denial of Protected Leave: Denying leave under the California Family Rights Act (CFRA) or pregnancy disability leave can result in claims for reinstatement and compensation.
6. Invasion of Privacy:
   • Improper Employee Monitoring: Overreaching surveillance or searches without a legitimate business need can lead to claims for invasion of privacy.
7. Labor Code Violations:
   • Not Providing Accurate Wage Statements: Employers are required to provide accurate, itemized wage statements. Failure to do so can result in penalties for each pay period in which a violation occurred.
8. Public Policy Violations:
   • Termination for Refusal to Break the Law: If an employee is terminated for refusing to commit an illegal act, it can be grounds for a wrongful termination lawsuit.

How Plaintiffs’ Attorneys Address These Violations:

• Investigation: Attorneys will thoroughly investigate the claim, often consulting with labor law experts and reviewing company policies, pay records, and employee files.
• Demand Letters and Settlement Negotiations: Before filing a lawsuit, attorneys may send a demand letter outlining the alleged violations and potential remedies, and engage in settlement negotiations.
• Filing Claims: If a pre-litigation settlement is not reached, attorneys will file claims with appropriate agencies (like the Division of Labor Standards Enforcement for wage claims) or in court.
• Class Action Lawsuits: If the violations affect a group of employees, attorneys might file a class action lawsuit, seeking remedies for all affected workers.
• Litigation: Attorneys will represent the employee in court proceedings, including discovery, motions, trial, and any necessary appeals.
• Mediation and Arbitration: Some claims may be resolved through alternative dispute resolution methods, which are sometimes mandated by employment contracts.
• Remedies Sought: These may include back pay, front pay, compensatory damages for emotional distress, punitive damages, statutory penalties, attorneys’ fees, and costs of litigation.

California labor and employment law violations often result in significant financial liabilities for employers, not just from the primary damages but also due to the strong penalties and attorneys’ fees provisions that can accompany such claims.

Wrongful Termination

Wrongful Termination

Fair Employment And Housing Act (FEHA)

Fair Employment and Housing Act (FEHA) in the Context of Wrongful Termination and Employment Law in California

Introduction:

The Fair Employment and Housing Act (FEHA) is a critical component of employment law in the state of California, providing robust protections against discrimination, harassment, and wrongful termination in the workplace. FEHA prohibits employers from terminating employees based on certain protected characteristics and ensures that employees have legal recourse when their rights are violated. In this comprehensive overview, we will delve into the key aspects of FEHA, including its legal framework, potential problems, legal consequences, and relevant examples.

Legal Framework:

FEHA is a comprehensive state law in California that prohibits unlawful employment practices related to various protected characteristics, including race, color, religion, sex, gender, sexual orientation, disability, marital status, national origin, and age, among others. FEHA applies to employers with five or more employees, including both public and private sector employers.

Key legal principles related to FEHA in wrongful termination cases include:

1. Prohibition of Discrimination: FEHA prohibits employers from discriminating against employees on the basis of protected characteristics in any aspect of employment, including hiring, promotion, compensation, and termination.
2. Retaliation Prohibition: Employers are also prohibited from retaliating against employees for engaging in protected activities, such as reporting discrimination or harassment, filing a complaint with the Department of Fair Employment and Housing (DFEH), or participating in investigations or legal proceedings.
3. Reasonable Accommodation: Employers are required to provide reasonable accommodations to employees with disabilities, including adjustments to job duties or work conditions, unless it would impose an undue hardship on the employer.

Potential Problems:

While FEHA provides substantial protections for employees, several potential problems and challenges can arise in the context of wrongful termination:

1. Disputed Reasons for Termination: Employers may provide legitimate, non-discriminatory reasons for an employee’s termination, such as poor performance or misconduct. This can make it challenging for employees to establish that their termination was based on a protected characteristic.
2. Proving Discriminatory Intent: Employees alleging wrongful termination under FEHA must often demonstrate that their protected characteristic was a motivating factor in their termination, which can require significant evidence of discriminatory intent.
3. Mixed Motive Cases: In some situations, an employer may have multiple reasons for terminating an employee, including both legitimate and discriminatory factors. Determining the primary motive for the termination can be legally complex.
4. Retaliation Claims: Employees who engage in protected activities may still face retaliation from their employers. Establishing a causal link between the protected activity and the adverse employment action can be challenging.

Examples and Reasoning:

Example 1: An older employee with a long history of positive performance reviews is suddenly terminated shortly after a new manager takes over. The employee believes that their age played a role in their termination. To prove wrongful termination under FEHA, the employee would need to show that their age was a motivating factor in the termination and that the employer’s proffered reasons for termination were pretextual.

Example 2: An employee reports sexual harassment by a coworker to their supervisor and HR. Subsequently, the employee faces increased scrutiny and negative performance evaluations, ultimately leading to their termination. In this case, the employee may have a strong retaliation claim under FEHA if they can demonstrate that the termination was in retaliation for reporting harassment.

Conclusion:

FEHA is a cornerstone of employment law in California, offering robust protection against wrongful termination, discrimination, and harassment in the workplace. While it provides essential safeguards for employees, the legal framework can be complex, requiring employees to establish a nexus between the adverse employment action and a protected characteristic. Employers should be aware of their obligations under FEHA and take steps to ensure compliance to avoid legal consequences.

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

FEHA

Additional Information

Employees should also be aware of their rights and seek legal counsel if they believe they have been wrongfully terminated or subjected to discriminatory practices. FEHA plays a vital role in promoting fair and equal employment opportunities in California, but navigating its intricacies requires a thorough understanding of the law and its application.

Overview of FEHA

The Fair Employment and Housing Act (FEHA) is a comprehensive piece of legislation in California that aims to protect individuals from discrimination, harassment, and retaliation in employment. Here’s an extensive overview of FEHA in the context of wrongful termination and employment law:

1. Scope: FEHA applies to public and private employers, labor organizations, and employment agencies in California. It covers employers with five or more employees, with some provisions applicable regardless of the number of employees.
2. Protected Classes: FEHA prohibits discrimination against employees and job applicants on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
3. Harassment and Discrimination: The Act forbids harassment and discrimination in the workplace based on any of the protected categories. This includes all aspects of employment, such as hiring, firing, promotions, job training, and compensation.

Wrongful Termination under FEHA

1. Definition: Wrongful termination occurs when an employee is fired for reasons that are illegal under FEHA, such as discrimination or retaliation.
2. Examples:
   • An employee is terminated after disclosing a disability or requesting disability-related accommodations.
   • A pregnant employee is fired due to her pregnancy, childbirth, or related medical conditions.
   • Termination in retaliation for complaining about or opposing discriminatory practices.
3. Legal Consequences:
   • Employers found in violation of FEHA can face legal consequences including compensatory damages (such as lost wages and emotional distress damages), punitive damages, and attorney’s fees.
   • Employers may also be required to reinstate the employee or provide reasonable accommodations.

Employment Law Context

1. Interactive Process Requirement: Employers are required to engage in a timely, good faith, interactive process to determine effective reasonable accommodations for employees with disabilities.
2. Retaliation Prohibited: FEHA specifically prohibits retaliation against employees who file discrimination or harassment complaints, participate in investigations, or oppose practices forbidden by the Act.

Potential Problems

1. Misclassification of Employees: Misclassifying workers as independent contractors can lead to FEHA violations if those workers are not afforded the protections given to regular employees.
2. Inadequate Training: Employers who fail to provide proper training on FEHA compliance to their staff, especially those in managerial positions, might inadvertently create environments where discrimination or harassment occurs.
3. Ambiguity in Policies: Vague or inconsistent application of workplace policies can lead to claims of discriminatory treatment under FEHA.

Reasoning and Logic

• Preventive Measures: Employers should adopt comprehensive, clear anti-discrimination policies, provide regular training, and ensure proper channels for complaints to prevent FEHA violations.
• Importance of Documentation: Maintaining thorough documentation of employment decisions can be critical in defending against wrongful termination claims.
• Balance of Rights: Employers need to balance business needs with the rights of employees to create a fair and legal workplace environment.

Conclusion

FEHA plays a vital role in shaping the employment landscape in California. It not only provides protections to employees from discriminatory practices but also places significant responsibilities on employers. Navigating FEHA requires a thorough understanding of its provisions, and failure to comply can result in severe legal consequences for businesses. Regular training, clear policies, and an understanding of the diverse workforce are key to ensuring compliance with FEHA.

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

Legal Process Under FEHA

The Legal Process under FEHA

1. Filing a Complaint:
   • Employees who believe they have been wrongfully terminated must first file a complaint with the DFEH.
   • The complaint should be filed within three years from the date of the alleged discriminatory act.
2. Investigation by DFEH:
   • DFEH conducts an investigation into the complaint. This can include interviews, requests for documents, and other fact-finding methods.
   • If DFEH finds sufficient evidence, it can attempt to resolve the issue through mediation or settlement.
3. Right-to-Sue Notice:
   • If the DFEH is unable to resolve the complaint or if the complainant chooses to bypass DFEH’s investigation, they can request a Right-to-Sue notice.
   • Obtaining this notice is necessary before one can file a lawsuit in civil court.
4. Litigation:
   • If the case goes to court, it follows the standard litigation process, including discovery, motions, and possibly a trial.

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

Potential Problems and Challenges

1. Meeting Deadlines: Failure to file a complaint within the specified time frame can result in the loss of the right to seek remedies under FEHA.
2. Gathering Evidence: Proving wrongful termination can be challenging, as it often relies on demonstrating the employer’s intent or bias, which requires substantial evidence.
3. Retaliation Concerns: Employees may fear retaliation from employers for filing a complaint, although FEHA offers protections against such actions.
4. Financial and Emotional Toll: The process can be lengthy and emotionally draining for the complainant, and there is no guarantee of a favorable outcome.

Examples and Reasoning

• Example 1: An employee is terminated shortly after disclosing a disability. If the termination lacks clear, non-discriminatory reasons, it could be considered wrongful under FEHA.
• Logic: The timing and lack of clear justification could be seen as evidence of discrimination based on disability.
• Example 2: An employee files a sexual harassment complaint and is subsequently demoted. This could be construed as retaliation, which is prohibited under FEHA.
• Logic: The adverse employment action following a complaint can be perceived as retaliatory, especially if no other valid reason for the demotion is provided.

Conclusion

Navigating the legalities of FEHA in cases of wrongful termination requires a nuanced understanding of both the substantive rights protected under the Act and the procedural steps required to pursue a claim. The complexity of proving discrimination or retaliation, the strict timelines for filing complaints, and the intricacies of the legal process can pose significant challenges. Individuals considering action under FEHA are often advised to seek legal counsel to navigate these complexities effectively. Employers, on their part, must ensure compliance with FEHA to avoid legal pitfalls and foster a fair, inclusive workplace environment.

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

FEHA Legal Framework

1. Scope and Application: FEHA, governed by the California Department of Fair Employment and Housing (DFEH), applies to employers, labor organizations, and employment agencies in California. This includes public and private employers with five or more employees.
2. Protected Classes: The Act prohibits employment discrimination based on race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
3. Prohibited Conduct: FEHA makes it illegal to discriminate against, harass, or retaliate against employees or job applicants in any aspect of employment, including hiring, termination, promotion, compensation, and training.

Adverse Employment Action

Adverse Employment Action

Adverse employment action, particularly in the context of wrongful termination and employment law in California, is a critical concept with wide-ranging legal implications. Here’s a comprehensive overview of this concept, including the legal framework, consequences, potential problems, and examples:

Definition and Legal Framework

1. Adverse Employment Action: This refers to any action taken by an employer that negatively affects an employee’s job status or working conditions. This can include termination, demotion, reduction in salary, significant changes in job responsibilities, or creating a hostile work environment.
2. Legal Basis: In California, adverse employment actions are primarily governed by the Fair Employment and Housing Act (FEHA) and relevant case law. These laws protect employees from adverse actions that are discriminatory or retaliatory in nature.

Application in Legal Context

1. Wrongful Termination: Termination of employment is the most clear-cut example of an adverse employment action. If the termination is based on discriminatory reasons (race, gender, age, etc.), it constitutes wrongful termination under FEHA.
2. Other Forms of Adverse Actions: Actions short of termination, like demotions or unfavorable job reassignments, can also be considered adverse if they materially affect the terms and conditions of employment.

Legal Consequences

1. For Employees: If an employee successfully proves that an adverse employment action was wrongful, they may be entitled to reinstatement, back pay, damages for emotional distress, punitive damages, and attorney fees.
2. For Employers: Employers found to have taken wrongful adverse actions can face significant financial penalties, mandatory changes in workplace policies, and damage to their reputation.

Problems and Challenges

1. Proving Intent: Demonstrating that an adverse action was due to unlawful reasons (like discrimination or retaliation) can be challenging.
2. Subjectivity in Assessment: What constitutes a significant change in job conditions can be subjective and varies case by case.
3. Mixed Motive Situations: Cases where both legitimate and unlawful reasons exist for an adverse action are complex and difficult to adjudicate.
4. Documentation and Compliance: Employers must carefully document all employment actions to defend against potential claims.

Examples

1. Example of Wrongful Adverse Action: An employee is demoted after filing a sexual harassment complaint. If the demotion is found to be retaliatory, it would be considered a wrongful adverse employment action.
2. Example of Lawful Adverse Action: An employee is demoted due to consistent poor performance, documented over time. If the demotion is based solely on performance and not on any protected characteristic, it may not be considered wrongful.

Conclusion

Adverse employment actions encompass a range of employer decisions that negatively impact an employee’s job. In California, the legality of such actions often hinges on whether they are discriminatory or retaliatory. Both employees and employers must understand the intricacies of these laws to navigate the employment landscape effectively. Given the complexities and potential legal ramifications, it is advisable to seek expert legal advice in these matters.

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

2509. “Adverse Employment Action” Explained

[Name of plaintiff] must prove that [he/she/nonbinary pronoun] was subjected to an adverse employment action.

Adverse employment actions are not limited to ultimate actions such as termination or demotion. There is an adverse employment action if [name of defendant] has taken an action or engaged in a course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, conditions, or privileges of [name of plaintiff]’s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. However, minor or trivial actions or conduct that is not reasonably likely to do more than anger or upset an employee cannot constitute an adverse employment action.

New June 2012

Directions for Use

Give this instruction with CACI No. 2500, Disparate Treatment—Essential Factual Elements, CACI No. 2505, Retaliation, CACI No. 2540, Disability Discrimination—Disparate Treatment—Essential Factual Elements, CACI No. 2560, Religious Creed Discrimination—Failure to Accommodate—Essential Factual Elements, or CACI No. 2570, Age Discrimination—Disparate Treatment—Essential Factual Elements, if there is an issue as to whether the employee was the victim of an adverse employment action.

For example, the case may involve a pattern of employer harassment consisting of acts that might not individually be sufficient to constitute discrimination or retaliation, but taken as a whole establish prohibited conduct. (See Yanowitz v.

L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052–1056 [32 Cal.Rptr.3d 436, 116

P.3d 1123].) Or the case may involve acts that, considered alone, would not appear to be adverse, but could be adverse under the particular circumstances of the case. (See Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389–1390 [37 Cal.Rptr.3d 113] [lateral transfer can be adverse employment action even if wages, benefits, and duties remain the same].)

Sources and Authority

• “Appropriately viewed, [section 12940(a)] protects an employee against unlawful discrimination with respect not only to so-called ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting

the terms, conditions, or privileges of employment for purposes of section 12940(a) (or give rise to a claim under section 12940(h)), the phrase ‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide.” (Yanowitz, supra, 36 Cal.4th at pp. 1053–1054, footnotes omitted.)

• “[T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).” (Yanowitz, supra, 36 Cal.4th at pp. 1054–1055.)
• “An ‘ “adverse employment action,” ’ . . . , requires a ‘substantial adverse change in the terms and conditions of the plaintiff’s employment’. ” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063 [119 Cal.Rptr.3d 878, internal citations omitted.)
• “Contrary to [defendant]’s assertion that it is improper to consider collectively the alleged retaliatory acts, there is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute.” (Yanowitz, supra, 36 Cal.4th at pp. 1055–1056, internal citations omitted.)
• “Moreover, [defendant]’s actions had a substantial and material impact on the conditions of employment. The refusal to promote [plaintiff] is an adverse employment action under FEHA. There was also a pattern of conduct, the totality of which constitutes an adverse employment action. This includes undeserved negative job reviews, reductions in his staff, ignoring his health concerns and acts which caused him substantial psychological harm.” (Wysinger

v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424 [69 Cal.Rptr.3d 1], internal citations omitted.)

• “The employment action must be both detrimental and substantial . . . [¶]. We must analyze [plaintiff’s] complaints of adverse employment actions to determine if they result in a material change in the terms of her employment, impair her employment in some cognizable manner, or show some other employment injury

. . . . [W]e do not find that [plaintiff’s] complaint alleges the necessary material changes in the terms of her employment to cause employment injury. Most of

the actions upon which she relies were one time events . . . . The other allegations . . . are not accompanied by facts which evidence both a substantial and detrimental effect on her employment.” (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511–512 [91 Cal.Rptr.2d 770], internal citations omitted.)

• “The ‘materiality’ test of adverse employment action . . . looks to ‘the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,’ and the test ‘must be interpreted liberally . . . with a reasonable appreciation of the realities of the workplace………. ’ ” (Patten, supra,

134 Cal.App.4th at p. 1389.)

• “Retaliation claims are inherently fact-specific, and the impact of an employer’s action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 366–367 [225 Cal.Rptr.3d 321].)
  • “[A] mere oral or written criticism of an employee……. does not meet the

definition of an adverse employment action under [the] FEHA.” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 92 [221

Cal.Rptr.3d 668].)

• “Mere ostracism in the workplace is insufficient to establish an adverse employment decision. However, ‘ “[W]orkplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for          retaliation

cases.” [Citation].’ ” (Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 212 [126 Cal.Rptr.3d 651], internal citations omitted.)

• “Not every change in the conditions of employment, however, constitutes an adverse employment action. ‘ “A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.”……………………………………………………………………………. ’

‘[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.’ ” (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357 [58 Cal.Rptr.3d

444].)

• “[R]efusing to allow a former employee to rescind a voluntary discharge—that is, a resignation free of employer coercion or misconduct—is not an adverse employment action.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161 [217 Cal.Rptr.3d 258].)
  • “[T]he reduction of [plaintiff]’s hours alone could constitute a material and adverse employment action by the [defendant].” (Light, supra, 14 Cal.App.5th at p. 93.)

• “[A] job reassignment may be an adverse employment action when it entails materially adverse consequences.” (Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1279 [227 Cal.Rptr.3d 695].)
• “[T]he denial of previously promised training and the failure to promote may constitute adverse employment actions.” (Light, supra, 14 Cal.App.5th at p. 93.)
• “The trial court correctly found that the act of placing plaintiff on administrative leave [involuntarily] was an adverse employment action.” (Whitehall, supra, 17 Cal.App.5th at p. 367.)
• “[Plaintiff] has presented no authority, and we are aware of none, holding that a single threat of an adverse employment action, never carried out, could itself constitute an adverse employment action under the standard articulated in Yanowitz and its progeny.” (Meeks v. AutoZone, Inc. (2018) 24 Cal.App.5th 855, 879 [235 Cal.Rptr.3d 161].)

Secondary Sources

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

§§ 1052–1055

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:203, 7:731, 7:785 (The Rutter Group)

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

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.36 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, § 249.12 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful Termination and Discipline, § 100.42 (Matthew Bender)

Definition of Employer Under FEHA

Definition of Employer under FEHA Includes Third Party, Third Parties, Employment Agencies, Employer

Definition of Employer under FEHA Includes Third Party, Third Parties, Employment Agencies, Employer

Under FEHA, “ ‘[e]mployer’ includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly . . . .”

An employer’s business entity agents can be held directly liable under the FEHA for employment
discrimination in appropriate circumstances when the business entity agent has at least five employees and carries out FEHA regulated activities on behalf of an employer. See RAINES v. U.S. HEALTHWORKS MEDICAL GROUP

Section 12926, subdivision (d) states that, for purposes of the FEHA, the term “ ‘[e]mployer’ includes . . . any person acting as an agent of an employer, directly or indirectly . . . .” The most
natural reading of this language is that a “person acting as an agent of an employer” is itself an employer for purposes of the FEHA.

Indeed, this interpretation accounts for and reasonably construes the word “includes” (§ 12926, subd. (d)), a word that, in this context, can only be intended to broaden the scope of the
term “employer.” In addition, because “partnerships, associations, corporations, [and] limited liability companies” come within the FEHA’s definition of the word “ ‘[p]erson’ ” (§ 12925, subd. (d)), it follows that a business-entity agent of a FEHA plaintiff’s employer is, for purposes of the FEHA, an employer of the plaintiff.

Individual Supervisors Can Be Liable Harassment

Section 12940, subdivision (j), which governs harassment, expressly imposes liability on the
employees who are responsible for the harassment.

“An employee of an entity subject to this [harassment] subdivision is personally liable for
any harassment prohibited by this section that is perpetrated by the employee . . . .” (§ 12940, subd. (j)(3).)

The Legislature used express language in section 12940 when it wanted to impose personal liability on employees, and therefore the absence of such language in the retaliation provision (§ 12940, subd. (h)) supported the inference that the Legislature did not intend to impose personal liability on employees for their acts of retaliation. (Jones, at p. 1162– 1163.)

Business Entities and Independent Contractors Are Not Immune

Section 12926, subdivision (d) permits direct liability for other types of agents, such as business
entities acting as independent contractors. (See Reno, supra, 18 Cal.4th at p. 658.)

The California Fair Employment and Housing Act, which defines “employer” to “include[]” “any person acting as an agent of an employer” (§ 12926, subd. (d)), permits a business entity acting as an agent of an employer to be held directly liable as an employer for employment discrimination in violation of the FEHA in appropriate circumstances when the business-entity agent has at least five employees and carries out FEHA regulated activities on behalf of an employer

Individual Supervisors are Immune For Discrimination and Retaliation

“Individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.” (Reno, at p. 663.)

In Jones, we extended Reno’s holding to a claim of retaliation in violation of section 12940, subdivision (h), holding that supervisorial employees are not liable under the FEHA for
their retaliatory acts. (Jones, supra, 42 Cal.4th at pp. 1173–1174.) We reached that conclusion despite the retaliation provision’s broad wording, which refers not merely to the “employer” but to “any employer, labor organization, employment agency, or person.” (§ 12940, subd. (h), italics
added.)

Substantial motivating Reason

“Substantial Motivating Reason”

“Substantial Motivating Reason”

“Substantial Motivating Reason” in the context of wrongful termination and employment law in California is a legal concept that plays a crucial role in determining the legitimacy of an employee’s dismissal.

Definition and Legal Framework

1. Substantial Motivating Reason: This is a legal standard used in California to determine whether an employee’s protected characteristic (such as race, gender, age, disability, etc.) was a substantial factor in the employer’s decision to terminate the employment. If so, it constitutes wrongful termination.
2. Relevant Legislation: The primary legal framework includes the California Fair Employment and Housing Act (FEHA) and relevant case law, which protect employees from discrimination and wrongful termination.

Application in Legal Proceedings

1. Employee’s Burden of Proof: The employee must initially show that their protected characteristic was a likely reason for their termination.
2. Employer’s Defense: The employer can defend themselves by demonstrating that the same decision would have been made regardless of the employee’s protected characteristic.
3. Evaluation of Evidence: Courts assess evidence like emails, witness testimonies, and employment records to determine if discrimination was a substantial motivating reason.

Legal Consequences

1. For Employees: Successful claims can lead to reinstatement, back pay, damages for emotional distress, and sometimes punitive damages.
2. For Employers: A finding against the employer can result in significant financial penalties, reputational damage, and mandatory changes in workplace policies and training.

Problems and Challenges

1. Subjectivity: Determining what constitutes a ‘substantial’ reason can be subjective and varies case by case.
2. Mixed Motives: Cases where both legitimate and discriminatory reasons exist for termination are complex and challenging to adjudicate.
3. Evidence Gathering: Employees often face difficulties in obtaining concrete evidence of discrimination.
4. Cost and Duration of Legal Proceedings: Legal battles can be expensive and time-consuming for both parties.

Examples

1. Example of Discriminatory Termination: An employee is fired shortly after revealing their pregnancy. If evidence shows that pregnancy was a substantial factor in the decision, it could be a wrongful termination.
2. Example of Non-Discriminatory Termination: An older employee is fired due to consistent underperformance, documented over time, and unrelated to age. This might not be considered wrongful termination even if age is cited as a concern by the employee.

Conclusion

The concept of “Substantial Motivating Reason” is central in cases of wrongful termination in California. It requires a careful and detailed examination of the motives behind an employee’s dismissal. Both employees and employers must navigate this legal landscape carefully, as misunderstandings or misapplications of this concept can lead to prolonged legal battles and significant financial consequences.

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

More Information

“Substantial Motivating Reason” is a crucial concept in the context of wrongful termination and employment law in the state of California.

1. Substantial Motivating Reason:

In California, the “substantial motivating reason” concept is related to wrongful termination claims, especially under the California Fair Employment and Housing Act (FEHA). It addresses situations where an employee believes that an illegal or discriminatory reason was a substantial motivating factor in their termination.

2. Legal Consequences:

a. Proving Discrimination or Retaliation: To establish a claim of wrongful termination based on a “substantial motivating reason,” an employee must show that their protected characteristic (e.g., race, gender, age) or protected activity (e.g., reporting discrimination) was a substantial motivating reason for their termination.

b. Mixed-Motive Claims: California recognizes “mixed-motive” claims. This means that even if an employer had other valid reasons for termination, if an illegal or discriminatory reason was a substantial motivating factor, the employee can still prevail, though remedies may be limited.

c. Potential Remedies: If an employee successfully proves a wrongful termination claim based on a substantial motivating reason, they may be entitled to remedies such as back pay, front pay, reinstatement, emotional distress damages, and attorney’s fees.

3. Problems that Could Arise:

Several issues and complexities can arise when dealing with the “substantial motivating reason” concept:

a. Proving Motivation: Establishing that a discriminatory or illegal reason was a substantial motivating factor can be challenging, especially if an employer has legitimate non-discriminatory reasons for the termination.

b. Mixed-Motive Cases: When there are both legal and legitimate reasons for termination, disputes can arise over the weight and significance of each reason in the decision-making process.

c. Causation: Determining whether the protected characteristic or activity directly led to the termination, as opposed to being a tangential or minor factor, can be legally complex.

4. Examples:

a. Age Discrimination: An older employee is terminated after a new manager joins the company and makes age-related comments. Even if the employer cites performance issues as the primary reason for termination, the age-related comments could be considered a substantial motivating reason if they played a significant role.

b. Retaliation: An employee is fired shortly after reporting sexual harassment. While the employer claims that it was due to budget cuts, if the timing suggests retaliation for reporting harassment, the reporting may be seen as a substantial motivating reason.

5. Reasoning and Logic:

The “substantial motivating reason” concept is grounded in the principle of preventing discrimination and retaliation in the workplace. It recognizes that even if an employer has other valid reasons for termination, if unlawful motives played a significant role, employees should still have recourse under the law. This approach aligns with California’s strong commitment to protecting employee rights and promoting workplace fairness.

In summary, the “substantial motivating reason” is a vital aspect of California employment law that addresses wrongful termination claims involving discriminatory or illegal motivations. While it allows employees to seek remedies for wrongful termination even in mixed-motive cases, it also presents challenges in terms of proving motivation and causation. Employees and employers involved in such cases should consult with experienced employment law attorneys to navigate these complexities effectively while ensuring that the rights and interests of all parties are upheld within the framework of California employment law.

2507. “Substantial Motivating Reason” Explained

A “substantial motivating reason” is a reason that actually contributed to the [specify adverse employment action]. It must be more than a remote or trivial reason. It does not have to be the only reason motivating the [adverse employment action].

New December 2007; Revised June 2013

Directions for Use

Read this instruction with CACI No. 2500, Disparate Treatment—Essential Factual Elements, CACI No. 2505, Retaliation—Essential Factual Elements, CACI No.

2540, Disability Discrimination—Disparate Treatment—Essential Factual Elements, CACI No. 2560, Religious Creed Discrimination—Failure to Accommodate—Essential Factual Elements, or CACI No. 2570, Age Discrimination—Disparate Treatment—Essential Factual Elements.

Sources and Authority

• Discrimination Prohibited Under Fair Employment and Housing Act. Government Code section 12940(a).
• Causation Under Federal Law. Title 42 United States Code section 2000e-2(m).
• “Substantial Motivating Factor” Explained. Title 2 California Code of Regulations section 11009(c).
• “Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 [100

Cal.Rptr.2d 352, 8 P.3d 1089].)

• “While a complainant need not prove that [discriminatory] animus was the sole motivation behind a challenged action, he must prove by a preponderance of the evidence that there was a ‘causal connection’ between the employee’s protected status and the adverse employment decision.” (Mixon v. Fair Employment and Housing Com. (1987) 192 Cal.App.3d 1306, 1319 [237 Cal.Rptr. 884].)
• “The employee need not show ‘he would have in any event been rejected or discharged solely on the basis of his race, without regard to the alleged deficiencies.          ’ In other words, ‘while a complainant need not prove that

racial animus was the sole motivation behind the challenged action, he must prove by a preponderance of the evidence that there was a “causal connection” between the employee’s protected status and the adverse employment decision.’ ” (Clark v. Claremont University Center (1992) 6 Cal.App.4th 639, 665 [8 Cal.Rptr.2d 151], citing McDonald v. Santa Fe Trail Transp. Co. (1976) 427

U.S. 273, 282, fn. 10 [96 S.Ct. 2574, 49 L.Ed.2d 493, 502] and Mixon, supra,

192 Cal.App.3d at p. 1319.)

• “Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. At the same

time, . . . proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49], original italics.)

• “We do not suggest that discrimination must be alone sufficient to bring about an employment decision in order to constitute a substantial motivating factor. But it is important to recognize that discrimination can be serious, consequential, and even by itself determinative of an employment decision without also being a “but for” cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “Although [plaintiff] contends that a jury in an employment discrimination case would not draw any meaningful distinction between ‘a motivating reason’ and ‘a substantial motivating reason’ in deciding whether there was unlawful discrimination, the Supreme Court reached a contrary conclusion in Harris [supra]. The court specifically concluded that ‘[r]equiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision.’ ” (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758].)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:485–7:508 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.61–2.65, 2.87

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.11[1] (Matthew Bender)

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

California Civil Practice: Employment Litigation, §§ 2:20–2:21, 2:75 (Thomson Reuters)

Wrongful Discharge in Violation of Public Policy

Wrongful Discharge in Violation of Public Policy

Wrongful discharge in violation of public policy is a significant aspect of employment law, particularly in the state of California. This legal principle is designed to protect employees from being terminated for reasons that violate fundamental public policy. Here is a comprehensive overview of this concept:

Definition and Legal Basis

• Wrongful Discharge in Violation of Public Policy: This occurs when an employer terminates an employee for reasons that contravene established public policy. This principle is grounded in the doctrine that no individual should be compelled to choose between violating the law and keeping their job.
• Legal Foundation in California: In California, the doctrine is rooted in common law and has been affirmed in several court cases, including Tameny v. Atlantic Richfield Co. (1980).

Essential Factual Allegations

To establish a case for wrongful discharge in violation of public policy, the plaintiff must typically prove:

1. Employment Termination: The employee was terminated from their job.
2. Violation of Public Policy: The termination was for a reason that violates a public policy.
3. Policy Clarity: The public policy must be well-established and fundamental.
4. Causal Connection: A direct link between the violation of public policy and the termination.

Examples of Violations

• Refusal to Violate a Law: For example, an employee is fired for refusing to participate in illegal activities as instructed by the employer.
• Exercising a Legal Right: Such as termination for taking family or medical leave under the Family and Medical Leave Act (FMLA).
• Reporting Violations (Whistleblowing): An employee is terminated for reporting the employer’s illegal activities or safety violations.

Legal Consequences

• Civil Lawsuits: Employees can sue for damages, including lost wages and benefits, emotional distress, and sometimes punitive damages.
• Reinstatement: Courts may order reinstatement of the employee.
• Legal Remedies: These might include compensatory damages, punitive damages, and injunctive relief.

Problems That Could Arise

• Proving the Public Policy: Identifying and proving a clear and fundamental public policy that has been violated can be challenging.
• At-Will Employment Complications: Since California is an at-will employment state, distinguishing a lawful termination from a wrongful discharge can be complex.
• Retaliation Claims: Employers might disguise the wrongful discharge as a termination for a legitimate reason, leading to difficulties in proving retaliation.
• Varied Interpretations: Different courts may interpret what constitutes a violation of public policy differently.

Reasoning and Logic

1. Protection of Fundamental Rights: The doctrine serves to protect employees from being forced into unethical situations or from being punished for upholding ethical standards.
2. Encouraging Ethical Business Practices: It discourages employers from engaging in illegal or unethical practices.
3. Balancing Employer and Employee Rights: It seeks a balance between the employer’s right to discharge employees and the employee’s right to be free from unethical and illegal demands.

Conclusion

Wrongful discharge in violation of public policy in California is a critical tool in protecting employees against unethical and illegal practices by employers. However, the complexity of proving such cases, especially in an at-will employment state, can present significant challenges. The law aims to balance the rights of employees to act according to ethical and legal standards without fear of losing their jobs against the rights of employers to make business decisions.

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

Additional Information

Wrongful Discharge in Violation of Public Policy in California:

Introduction:

Wrongful discharge in violation of public policy is a legal concept that protects employees in California from being terminated when their termination goes against established public policies. It is a significant aspect of employment law in the state, and understanding its legal consequences and essential factual allegations is crucial. In this overview, we will delve into the law surrounding wrongful discharge in violation of public policy in California, including its elements, legal consequences, potential problems, and examples.

1. Legal Framework in California:
2. In California, employment relationships are presumed to be at-will, meaning that either the employer or the employee can terminate the employment relationship at any time and for any reason, with some exceptions. Wrongful discharge in violation of public policy is one such exception.
3. Essential Factual Allegations:
4. To establish a claim for wrongful discharge in violation of public policy in California, an employee typically must allege and prove the following elements:a. Employment Relationship: The existence of an employer-employee relationship between the parties.b. Termination: That the employee was terminated from their employment.c. Public Policy Violation: That the termination was in violation of a fundamental public policy recognized by California law.d. Causation: A causal connection between the employee’s termination and the public policy violation.
5. Examples of Public Policy Violations:
6. California recognizes a variety of public policies that, if violated through termination, may give rise to a wrongful discharge claim. Some examples include:a. Whistleblower Protection: An employee cannot be terminated for reporting illegal activities or unsafe working conditions to authorities or supervisors.b. Discrimination and Harassment: Termination based on an employee’s protected characteristics (e.g., race, gender, age) or in retaliation for reporting discrimination or harassment can constitute a public policy violation.c. Refusal to Engage in Illegal Activities: An employee cannot be terminated for refusing to participate in illegal activities on the employer’s behalf.d. Jury Duty and Voting Rights: Firing an employee for serving on a jury or exercising their voting rights can be considered wrongful discharge.
7. Legal Consequences:
8. If an employee successfully proves a claim of wrongful discharge in violation of public policy, they may be entitled to various remedies, including:a. Reinstatement: The employee may be reinstated to their former position.b. Back Pay and Front Pay: Compensation for lost wages due to the wrongful termination.c. Emotional Distress Damages: Compensation for emotional distress resulting from the wrongful termination.d. Punitive Damages: In cases of egregious misconduct by the employer, punitive damages may be awarded to punish the employer.
9. Potential Problems and Challenges for Employees:
10. While wrongful discharge in violation of public policy provides important protections for employees, some challenges and problems can arise:a. Establishing Public Policy: Employees must clearly demonstrate that the termination violates a specific public policy, which can be subject to interpretation.b. Causation: Proving a direct link between the termination and the public policy violation can be challenging, especially if there were other factors involved in the termination decision.c. Defenses by Employers: Employers may raise defenses such as legitimate business reasons for the termination, which can complicate the case.d. Statute of Limitations: There is a limited timeframe in which an employee must file a wrongful discharge claim, and missing the deadline can result in the loss of the claim.

Conclusion:

Wrongful discharge in violation of public policy is a critical aspect of employment law in California, providing protection to employees against termination that contravenes public policy. Employees should consult with legal counsel to navigate the complexities of these claims, while employers should be aware of the legal consequences and strive to adhere to public policy in their employment practices to mitigate the risk of such claims.

_________________________

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

2430. Wrongful Discharge in Violation of Public Policy—Essential Factual Elements

[Name of plaintiff] claims [he/she/nonbinary pronoun] was discharged from employment for reasons that violate a public policy. It is a violation of public policy [specify claim in case, e.g., to discharge someone from employment for refusing to engage in price fixing]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] was employed by [name of defendant];
2. That [name of defendant] discharged [name of plaintiff];
3. That [insert alleged violation of public policy, e.g., “[name of plaintiff]’s refusal to engage in price fixing”] was a substantial motivating reason for [name of plaintiff]’s discharge;
4. That [name of plaintiff] was harmed; and
5. That the discharge was a substantial factor in causing [name of plaintiff] harm.

New September 2003; Revised June 2013, June 2014, December 2014, November

2018, May 2020

Directions for Use

The judge should determine whether the purported reason for firing the plaintiff would amount to a violation of public policy. (See Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1092 [4 Cal.Rptr.2d 874, 824 P.2d 680]; overruled on other grounds

in Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 80 fn. 6 [78 Cal.Rptr.2d 16, 960 P.2d 1046].) The jury should then be instructed that the alleged conduct would constitute a public-policy violation if proved.

Note that there are two causation elements. First, there must be causation between the public policy violation and the discharge (element 3). This instruction uses the term “substantial motivating reason” to express this causation element. “[S]ubstantial motivating reason” has been held to be the appropriate standard for cases alleging termination in violation of public policy. (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758]; see

Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; CACI No. 2507, “Substantial Motivating Reason” Explained.) Element 5 then expresses a second causation requirement; that the plaintiff was harmed as a result of the wrongful discharge.

If plaintiff alleges the plaintiff was forced or coerced to resign, then CACI

No. 2431, Constructive Discharge in Violation of Public Policy—Plaintiff Required to Violate Public Policy, or CACI No. 2432, Constructive Discharge in Violation of

Public Policy—Plaintiff Required to Endure Intolerable Conditions That Violate Public Policy, should be given instead. See also CACI No. 2510, “Constructive Discharge” Explained.

This instruction may be modified for adverse employment actions other than discharge, for example demotion, if done in violation of public policy. (See Garcia

v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 1561 [232 Cal.Rptr. 490], disapproved on other grounds in Gantt, supra, 1 Cal.4th at p. 1093 [public policy forbids retaliatory action taken by employer against employee who discloses information regarding employer’s violation of law to government agency].) See also CACI No. 2509, “Adverse Employment Action” Explained.

For an instruction on damages, give CACI No. 3903P, Damages From Employer for Wrongful Discharge (Economic Damage).

Sources and Authority

• “ ‘[W]hile an at-will employee may be terminated for no reason, or for an arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or a purpose that contravenes fundamental public policy. Any other conclusion would sanction lawlessness, which courts by their very nature are bound to oppose.’ ” (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1138–1139 [69 Cal.Rptr.3d 445], internal citations omitted.)
• “[W]hen an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal.Rptr. 839, 610 P.2d 1330].)
• “The elements of a claim for wrongful discharge in violation of public policy are

(1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Garcia-Brower v. Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 973 [269 Cal.Rptr.3d 856], internal citation omitted.)

• “[T]his court established a set of requirements that a policy must satisfy to support a tortious discharge claim. First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be ‘fundamental’ and ‘substantial.’ ” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890 [66

Cal.Rptr.2d 888, 941 P.2d 1157], footnote omitted.)

• “Policies are not ‘public’ (and thus do not give rise to a common law tort claim) when they are derived from statutes that ‘simply regulate conduct between private individuals, or impose requirements whose fulfillment does not implicate fundamental public policy concerns.’ ” (Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 926 [180 Cal.Rptr.3d 359].)
•  
• “[T]he cases in which violations of public policy are found generally fall into four categories: (1) refusing to violate a statute; (2) performing a statutory obligation (3) exercising a statutory right or privilege; and (4) reporting an alleged violation of a statute of public importance.” (Gantt, supra, 1 Cal.4th at

pp. 1090–1091, internal citations and footnote omitted, overruled on other grounds in Green, supra, 19 Cal.4th at p. 80, fn. 6; accord Stevenson, supra, 16 Cal.4th at p. 889.)

• “[T]ermination of an employee most clearly violates public policy when it contravenes the provision of a statute forbidding termination for a specified reason . . . .” (Diego, supra, 231 Cal.App.4th at p. 926)
  • “[Discharge because of employee’s] [r]efusal to violate a governmental regulation may also be the basis for a tort cause of action where the administrative regulation enunciates a fundamental public policy and is authorized by statute.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 708–709 [96 Cal.Rptr.3d 159].)
  • “In the context of a tort claim for wrongful discharge, tethering public policy to specific constitutional or statutory provisions serves not only to avoid judicial interference with the legislative domain, but also to ensure that employers have adequate notice of the conduct that will subject them to tort liability to the employees they discharge . . . .” (Stevenson, supra, 16 Cal.4th at p. 889.)
  • “[A]n employee need not prove an actual violation of law; it suffices if the employer fired him for reporting his ‘reasonably based suspicions’ of illegal activity.” (Green, supra, 19 Cal.4th at p. 87, internal citation omitted.)
  • “[A]n employer’s authority over its employee does not include the right to demand that the employee commit a criminal act to further its interests, and an employer may not coerce compliance with such unlawful directions by discharging an employee who refuses to follow such an order         ” (Tameny,

supra, 27 Cal.3d at p. 178.)

• “[T]here is a ‘fundamental public interest in a workplace free from illegal practices ’ ‘[T]he public interest is in a lawful, not criminal, business

operation. Attainment of this objective requires that an employee be free to call his or her employer’s attention to illegal practices, so that the employer may prevent crimes from being committed by misuse of its products by its employees.’ ” (Yau v. Allen (2014) 229 Cal.App.4th 144, 157 [176 Cal.Rptr.3d

824].)

• “Whether an employer has conducted an adequate investigation before dismissing an employee for an unlawful purpose is generally a question of fact for the jury.” (Garcia-Brower, supra, 55 Cal.App.5th at p. 974.)
  • “An action for wrongful termination in violation of public policy ‘can only be asserted against an employer. An individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy; rather, he or she can only be the agent by which an employer commits that tort.’ ” (Kim v.

Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1351 [172 Cal.Rptr.3d 686], original italics.)

• “Sex discrimination in employment may support a claim of tortious discharge in violation of public policy.” (Kelley v. The Conco Cos. (2011) 196 Cal.App.4th 191, 214 [126 Cal.Rptr.3d 651].)
• “In sum, a wrongful termination against public policy common law tort based on sexual harassment can be brought against an employer of any size.” (Kim, supra, 226 Cal.App.4th at p. 1351.)
• “To establish a claim for wrongful termination in violation of public policy, an employee must prove causation. (See CACI No. 2430 [using phrase ‘substantial motivating reason’ to express causation].) Claims of whistleblower harassment and retaliatory termination may not succeed where a plaintiff ‘cannot demonstrate the required nexus between his reporting of alleged statutory violations and his allegedly adverse treatment by [the employer].’ ” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1357 [181 Cal.Rptr.3d

68].)

• “It would be nonsensical to provide a different standard of causation in FEHA cases and common law tort cases based on public policies encompassed by FEHA.” (Mendoza v. Western Medical Center Santa Ana (2014) 222 Cal.App.4th 1334, 1341 [166 Cal.Rptr.3d 720].)
• “If claims for wrongful termination in violation of public policy must track FEHA, it necessarily follows that jury instructions pertinent to causation and motivation must be the same for both. Accordingly, we conclude the trial court did not err in giving the instructions set forth in the CACI model jury instructions.” (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1323 [200 Cal.Rptr.3d 315].)
• “Under California law, if an employer did not violate FEHA, the employee’s claim for wrongful termination in violation of public policy necessarily fails.” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169 [217 Cal.Rptr.3d 258].)
• “FEHA’s policy prohibiting disability discrimination in employment is sufficiently substantial and fundamental to support a claim for wrongful termination in violation of public policy.” (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 660 [163 Cal.Rptr.3d 392].)
• “Although the fourth cause of action references FEHA as one source of the public policy at issue, this is not a statutory FEHA cause of action. FEHA does not displace or supplant common law tort claims for wrongful discharge.” (Kim, supra, 226 Cal.App.4th at p. 1349.)
• “[T]o the extent the trial court concluded Labor Code section 132a is the exclusive remedy for work-related injury discrimination, it erred. The California Supreme Court held ‘[Labor Code] section 132a does not provide an exclusive remedy and does not preclude an employee from pursuing FEHA and common
•  

law wrongful discharge remedies.’ ” (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1381 [196 Cal.Rptr.3d 68].)

• “California’s minimum wage law represents a fundamental policy for purposes of a claim for wrongful termination or constructive discharge in violation of public policy.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 831–832 [166 Cal.Rptr.3d 242].)
  • “ ‘Labor Code section 1102.5, subdivision (b), which prohibits employer retaliation against an employee who reports a reasonably suspected violation of the law to a government or law enforcement agency, reflects the broad public policy interest in encouraging workplace “whistleblowers,” who may without fear of retaliation report concerns regarding an employer’s illegal conduct. This public policy is the modern day equivalent of the long-established duty of the citizenry to bring to public attention the doings of a lawbreaker. [Citation.]

. . .’ ” (Ferrick, supra, 231 Cal.App.4th at p. 1355.)

• “That [defendant]’s decision not to renew her contract for an additional season

might have been influenced by her complaints about an unsafe working condition

. . . does not change our conclusion in light of the principle that a decision not to renew a contract set to expire is not actionable in tort.” (Touchstone Television Productions v. Superior Court (2012) 208 Cal.App.4th 676, 682 [145 Cal.Rptr.3d

766], original italics.)

• “ ‘ “[P]ublic policy’ as a concept is notoriously resistant to precise definition, and

. . . courts should venture into this area, if at all, with great care…….. ”

[Citation.] Therefore, when the constitutional provision or statute articulating a public policy also includes certain substantive limitations in scope or remedy, these limitations also circumscribe the common law wrongful discharge cause of action. Stated another way, the common law cause of action cannot be broader than the constitutional provision or statute on which it depends, and therefore it ‘presents no impediment to employers that operate within the bounds of law.” [Citation.]’ ” (Dutra v. Mercy Medical Center Mt. Shasta (2012) 209 Cal.App.4th 750, 756 [146 Cal.Rptr.3d 922], original italics.)

Secondary Sources

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

§ 255 et seq.

Chin et al., California Practice Guide: Employment Litigation, Ch. 5-(I)B, Wrongful Discharge In Violation Of Public Policy (Tameny Claims), ¶¶ 5:47, 5:50, 5:70, 5:105, 5:115, 5:150, 5:151, 5:170, 5:195, 5:220, 5:235 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Public Policy Violations, § 5.45

4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, § 60.04 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, §§ 249.12, 249.50–249.52 (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful

Termination and Discipline, §§ 100.41–100.61B (Matthew Bender) California Civil Practice: Employment Litigation §§ 6:23–6:25

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Additional Information

Wrongful Discharge in Violation of Public Policy in California:Introduction: Wrongful discharge in violation of public policy is a legal concept that protects employees in California from being terminated when their termination goes against established public policies. It is a significant aspect of employment law in the state, and understanding its legal consequences and essential factual allegations is crucial. In this overview, we will delve into the law surrounding wrongful discharge in violation of public policy in California, including its elements, legal consequences, potential problems, and examples.

1. Legal Framework in California: In California, employment relationships are presumed to be at-will, meaning that either the employer or the employee can terminate the employment relationship at any time and for any reason, with some exceptions. Wrongful discharge in violation of public policy is one such exception.Essential Factual Allegations: To establish a claim for wrongful discharge in violation of public policy in California, an employee typically must allege and prove the following elements:a. Employment Relationship: The existence of an employer-employee relationship between the parties.b. Termination: That the employee was terminated from their employment.c. Public Policy Violation: That the termination was in violation of a fundamental public policy recognized by California law.d. Causation: A causal connection between the employee’s termination and the public policy violation.Examples of Public Policy Violations: California recognizes a variety of public policies that, if violated through termination, may give rise to a wrongful discharge claim. Some examples include:a. Whistleblower Protection: An employee cannot be terminated for reporting illegal activities or unsafe working conditions to authorities or supervisors.b. Discrimination and Harassment: Termination based on an employee’s protected characteristics (e.g., race, gender, age) or in retaliation for reporting discrimination or harassment can constitute a public policy violation.c. Refusal to Engage in Illegal Activities: An employee cannot be terminated for refusing to participate in illegal activities on the employer’s behalf.d. Jury Duty and Voting Rights: Firing an employee for serving on a jury or exercising their voting rights can be considered wrongful discharge.Legal Consequences: If an employee successfully proves a claim of wrongful discharge in violation of public policy, they may be entitled to various remedies, including:a. Reinstatement: The employee may be reinstated to their former position.b. Back Pay and Front Pay: Compensation for lost wages due to the wrongful termination.c. Emotional Distress Damages: Compensation for emotional distress resulting from the wrongful termination.d. Punitive Damages: In cases of egregious misconduct by the employer, punitive damages may be awarded to punish the employer.Potential Problems and Challenges for Employees: While wrongful discharge in violation of public policy provides important protections for employees, some challenges and problems can arise:a. Establishing Public Policy: Employees must clearly demonstrate that the termination violates a specific public policy, which can be subject to interpretation.b. Causation: Proving a direct link between the termination and the public policy violation can be challenging, especially if there were other factors involved in the termination decision.c. Defenses by Employers: Employers may raise defenses such as legitimate business reasons for the termination, which can complicate the case.d. Statute of Limitations: There is a limited timeframe in which an employee must file a wrongful discharge claim, and missing the deadline can result in the loss of the claim.

Conclusion: Wrongful discharge in violation of public policy is a critical aspect of employment law in California, providing protection to employees against termination that contravenes public policy. Employees should consult with legal counsel to navigate the complexities of these claims, while employers should be aware of the legal consequences and strive to adhere to public policy in their employment practices to mitigate the risk of such claims.

Retaliation and Wrongful Termination

Retaliation and Wrongful Termination

Retaliation in the context of wrongful termination and employment law in California is a complex and critical area, encompassing various legal principles and statutes.

Legal Framework

1. Primary Laws Governing Retaliation in California:
   • Fair Employment and Housing Act (FEHA): Prohibits retaliation against employees for engaging in protected activities like filing a discrimination or harassment complaint.
   • California Labor Code: Contains specific provisions against retaliation for activities such as whistleblowing or discussing wages.
   • Public Policy: California recognizes wrongful termination in violation of public policy, which includes retaliation for reasons that society recognizes as illegitimate.
2. Protected Activities:
   • Filing or participating in discrimination/harassment complaints.
   • Whistleblowing on illegal activities.
   • Taking family or medical leave under the California Family Rights Act.
   • Engaging in political activities or discussing wages with colleagues.

1. Legal Framework to Address Retaliation and Wrongful Termination:

Federal Laws: The primary federal law that addresses retaliation in employment is Title VII of the Civil Rights Act of 1964. It prohibits employers from retaliating against employees who engage in protected activities, such as complaining about discrimination or harassment.

State Laws: In California, the Fair Employment and Housing Act (FEHA) provides additional protection against retaliation. FEHA prohibits employers from retaliating against employees who oppose discrimination, harassment, or other unlawful employment practices. It also protects employees who participate in investigations, proceedings, or hearings related to these complaints.

Legal Consequences

1. Damages for Retaliation:
   • Economic damages like lost wages and benefits.
   • Non-economic damages for emotional distress.
   • Punitive damages in cases of egregious conduct.
   • Attorney’s fees and costs.
2. Injunctive Relief:
   • Courts may order reinstatement or prohibit further unlawful practices.

Potential Problems

1. Proving Retaliation:
   • Establishing a causal link between the protected activity and adverse employment action is challenging. Employers often cite legitimate reasons for termination.
2. Varied Interpretations of ‘Protected Activity’:
   • Ambiguities in what constitutes a protected activity can lead to litigation.
3. Balancing Employer Rights:
   • Ensuring that anti-retaliation laws do not unduly hamper legitimate managerial decisions is a fine balance.

Examples

1. Case of a Whistleblower:
   • An employee reports safety violations and is subsequently fired. If a direct link between the complaint and termination is proven, this constitutes retaliation.
2. Retaliation after Harassment Complaint:
   • An employee files a sexual harassment complaint and is later demoted. Even if the demotion is under the guise of restructuring, it may be seen as retaliatory if timing and other factors suggest a link to the complaint.

Reasoning and Logic

• Burden of Proof: The employee must initially demonstrate that the protected activity was a contributing factor in the adverse employment action. The employer then must show a legitimate, non-retaliatory reason for the action.
• Temporal Proximity: A short time between the employee’s protected activity and the employer’s adverse action can suggest retaliation.
• Employer Behavior: Patterns of behavior or inconsistencies in the employer’s rationale can indicate retaliation.

Conclusion

Retaliation in the employment context in California is legally complex, requiring careful analysis of the circumstances surrounding each case. While laws like FEHA provide strong protections, the intricacies involved in proving retaliation and balancing employer rights make it a legally nuanced area. The key is to meticulously examine the link between the protected activity and the adverse action, considering all possible legitimate reasons an employer may have.

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Additional Information

1. Legal Framework to Address Retaliation and Wrongful Termination:

Federal Laws: The primary federal law that addresses retaliation in employment is Title VII of the Civil Rights Act of 1964. It prohibits employers from retaliating against employees who engage in protected activities, such as complaining about discrimination or harassment.

State Laws: In California, the Fair Employment and Housing Act (FEHA) provides additional protection against retaliation. FEHA prohibits employers from retaliating against employees who oppose discrimination, harassment, or other unlawful employment practices. It also protects employees who participate in investigations, proceedings, or hearings related to these complaints.

2. Retaliation in the Context of Wrongful Termination:

Retaliation occurs when an employer takes adverse action against an employee in response to the employee’s protected activity. Protected activities include filing a complaint, reporting harassment, participating in an investigation, or assisting a coworker in asserting their rights. Wrongful termination due to retaliation involves an employee being fired as a result of engaging in such protected activities.

3. Legal Consequences:

The legal consequences for employers found guilty of retaliation in wrongful termination cases in California can be significant. These consequences may include:

• Reinstatement: The court may order the employer to reinstate the terminated employee to their previous position.
• Back Pay: Employees may be entitled to recover lost wages they would have earned had they not been terminated.
• Front Pay: In some cases, the court may award future earnings the employee would have received if not for the wrongful termination.
• Compensatory Damages: Employees may receive compensation for emotional distress, pain, and suffering caused by the retaliation.
• Punitive Damages: If the retaliation was particularly egregious or willful, the court may impose punitive damages as a deterrent.

4. Problems That Could Arise:

Several problems can arise in retaliation cases related to wrongful termination:

a. Causation: Employees must demonstrate a causal connection between their protected activity and the adverse employment action. Employers may argue that the termination was due to legitimate reasons unrelated to retaliation.

b. Pretext: Employers may provide legitimate-sounding reasons for termination, making it challenging for employees to prove that retaliation was the true motive.

c. Timing: Timing can be a crucial factor. If an adverse action follows a protected activity closely, it may raise suspicions of retaliation.

d. Mixed-Motive Cases: Similar to discrimination cases, cases involving mixed motives (both legitimate and retaliatory) can be legally complex.

5. Examples:

Example 1: Maria, an employee in a California-based company, files a sexual harassment complaint against her supervisor. Shortly afterward, she is terminated for alleged performance issues. Maria believes she was wrongfully terminated in retaliation for her harassment complaint, which is a protected activity under FEHA.

Example 2: John, an employee in a California healthcare facility, reports to management that the facility is engaged in fraudulent billing practices. A few weeks later, John is fired, with his employer citing a reduction in workforce. John believes he was retaliated against for reporting the illegal activity, which is protected under whistleblower laws.

6. Legal Reasoning:

California’s laws against retaliation are designed to protect employees who exercise their rights under anti-discrimination and anti-harassment laws. Courts in California take a broad view of what constitutes protected activity, and the burden of proof for employees is generally lower compared to federal law. Employers must be cautious not to engage in retaliatory actions, as the legal consequences can be severe.

Conclusion

In conclusion, retaliation in wrongful termination cases in California is a significant concern for both employees and employers. Understanding the legal framework, recognizing protected activities, and avoiding retaliatory actions are essential for employers to comply with the law. Employees who believe they have been wrongfully terminated due to retaliation have legal remedies available to them and can seek redress through the courts.

Limitations on Remedies- Sane Decision Mixed Motives

Limitations on Remedies- Same Decision, Mixed Motives

Mixed Motives- Limitations on Remedies- Same Decision

In the context of wrongful termination and employment law in California, “mixed motive” cases present a unique legal challenge. These cases occur when there is evidence suggesting both prohibited (e.g., discriminatory) and legitimate reasons for an employer’s adverse action against an employee. Here’s an extensive overview of mixed motive cases, their legal consequences, potential problems, and illustrative examples:

Legal Framework

1. Mixed Motive Definition: A mixed motive case arises when an employer has both legitimate and unlawful reasons for taking an adverse action (such as termination, demotion, or pay cut) against an employee.
2. Statutory Basis: These cases are evaluated under the California Fair Employment and Housing Act (FEHA) and relevant case law. FEHA prohibits employment decisions based on protected characteristics (like race, gender, age, etc.).

Application in Legal Context

1. Employee’s Burden of Proof: The employee must first present sufficient evidence that a prohibited reason was a motivating factor in the adverse employment action.
2. Employer’s Defense: The employer can then counter with evidence that they had a legitimate, non-discriminatory reason for the action.
3. Jury’s Role: The jury evaluates the evidence to determine whether both prohibited and legitimate reasons motivated the employer’s decision.

Legal Consequences

1. For Employees: If the jury finds a mixed motive, employees may not be entitled to damages (like back pay or emotional distress) that are typically awarded in discrimination cases.
2. For Employers: However, employers can still be liable for the employee’s attorney fees and costs. This is because the prohibited reason was found to be part of the motivation for the adverse action.

Problems and Challenges

1. Determining Mixed Motive: Establishing that a decision was made with mixed motives can be highly complex and subjective.
2. Evidence and Documentation: Both parties need to provide substantial evidence to support their claims, which can be difficult, especially for the employer to prove non-discriminatory motives.
3. Jury Interpretation: The way juries interpret “motivating factors” can vary significantly from case to case.
4. Employer’s Liability for Costs: Even if not liable for damages, the responsibility for legal costs can be a significant financial burden for employers.

Examples

1. Example of Mixed Motive Case: An employee is terminated after filing a sexual harassment complaint. The employer argues the termination was due to poor performance, evidenced by performance reviews. If the jury finds both reasons were motivators, it’s a mixed motive case.
2. Example of Clear Cut Discrimination: An employee is terminated solely based on their race, with no evidence of performance issues or other legitimate reasons. This would not be a mixed motive case but straightforward unlawful discrimination.

Conclusion

In California, mixed motive cases in wrongful termination and employment law require careful navigation. They present unique challenges in proving the extent and impact of both legitimate and prohibited motivations behind an employer’s action. These cases emphasize the need for thorough documentation and legal strategy from both parties. Due to their complexity, legal counsel is often crucial for navigating mixed motive scenarios effectively.

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2512. Limitation on Remedies—Same Decision

[Name of plaintiff] claims that [he/she/nonbinary pronoun] was [discharged/[other adverse employment action]] because of [his/her/nonbinary pronoun] [protected status or action, e.g., race, gender, or age], which is an unlawful [discriminatory/retaliatory] reason. [Name of defendant] claims that [name of plaintiff] [was discharged/[other adverse employment action]] because of [specify reason, e.g., plaintiff’s poor job performance], which is a lawful reason.

If you find that [discrimination/retaliation] was a substantial motivating reason for [name of plaintiff]’s [discharge/[other adverse employment action]], you must then consider [name of defendant]’s stated reason for the [discharge/[other adverse employment action]].

If you find that [e.g., plaintiff’s poor job performance] was also a substantial motivating reason, then you must determine whether the defendant has proven that [he/she/nonbinary pronoun/it] would have [discharged/[other adverse employment action]] [name of plaintiff] anyway at that time based on [e.g., plaintiff’s poor job performance] even if [he/ she/nonbinary pronoun/it] had not also been substantially motivated by [discrimination/retaliation].

In determining whether [e.g., plaintiff’s poor job performance] was a substantial motivating reason, determine what actually motivated [name of defendant], not what [he/she/nonbinary pronoun/it] might have been justified in doing.

If you find that [name of defendant] [discharged/[other adverse employment action]] [name of plaintiff] for a [discriminatory/retaliatory] reason, you will be asked to determine the amount of damages that [he/she/nonbinary pronoun] is entitled to recover. If, however, you find that [name of defendant] would have [discharged/[other adverse employment action]] [name of plaintiff] anyway at that time for [specify defendant’s nondiscriminatory/nonretaliatory reason], then [name of plaintiff] will not be entitled to reinstatement, back pay, or damages.

New December 2013; Revised June 2015, June 2016

Directions for Use

Give this instruction along with CACI No. 2507, “Substantial Motivating Reason” Explained, if the employee has presented sufficient evidence for the jury to find that the employer took adverse action against him or her for a prohibited reason, but the employer has presented sufficient evidence for the jury to find that it had a legitimate reason for the action. In such a “mixed-motive” case, the employer is relieved from an award of damages, but may still be liable for attorney fees and

costs and injunctive relief. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 211 [152 Cal.Rptr.3d 392, 294 P.3d 49].)

Mixed-motive must be distinguished from pretext though both require evaluation of the same evidence, i.e., the employer’s purported legitimate reason for the adverse action. In a pretext case, the only actual motive is the discriminatory one and the purported legitimate reasons are fabricated in order to disguise the true motive. (See City and County of San Francisco v. Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, 985 [236 Cal.Rptr. 716].) The employee has the burden of proving pretext. (Harris, supra, 56 Cal.4th at pp. 214–215.) If the employee proves discrimination or retaliation and also pretext, the employer is liable for all potential remedies including damages. But if the employee proves discrimination or retaliation but fails to prove pretext, then a mixed-motive case is presented. To avoid an award of damages, the employer then has the burden of proving that it would have made the same decision anyway solely for the legitimate reason, even though it may have also discriminated or retaliated.

Sources and Authority

• “[U]nder the FEHA, when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement. But the employer does not escape liability. In light of the FEHA’s express purpose of not only redressing but also preventing and deterring unlawful discrimination in the workplace, the plaintiff in this circumstance could still be awarded, where appropriate, declaratory relief or injunctive relief to stop discriminatory practices. In addition, the plaintiff may be eligible for reasonable attorney’s fees and costs.” (Harris, supra, 56 Cal.4th at p. 211.)
• “Because employment discrimination litigation does not resemble the kind of cases in which we have applied the clear and convincing standard, we hold that preponderance of the evidence is the standard of proof applicable to an employer’s same-decision showing” (Harris, supra, 53 Cal.4th at p. 239.)
• “[W]hen we refer to a same-decision showing, we mean proof that the employer, in the absence of any discrimination, would have made the same decision at the time it made its actual decision.” (Harris, supra, 56 Cal.4th at p. 224, original italics.)
• “In light of today’s decision, a jury in a mixed-motive case alleging unlawful termination should be instructed that it must find the employer’s action was substantially motivated by discrimination before the burden shifts to the employer to make a same-decision showing, and that a same-decision showing precludes an award of reinstatement, backpay, or damages.” (Harris, supra, 56 Cal.4th at p. 241.)
• “We do not suggest that discrimination must be alone sufficient to bring about an employment decision in order to constitute a substantial motivating factor. But it is important to recognize that discrimination can be serious, consequential, and

12

even by itself determinative of an employment decision without also being a ‘but for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)

• “[A] plaintiff has the initial burden to make a prima facie case of discrimination by showing that it is more likely than not that the employer has taken an adverse employment action based on a prohibited criterion. A prima facie case establishes a presumption of discrimination. The employer may rebut the presumption by producing evidence that its action was taken for a legitimate, nondiscriminatory reason. If the employer discharges this burden, the presumption of discrimination disappears. The plaintiff must then show that the employer’s proffered nondiscriminatory reason was actually a pretext for discrimination, and the plaintiff may offer any other evidence of discriminatory motive. The ultimate burden of persuasion on the issue of discrimination remains with the plaintiff.” (Harris, supra, 56 Cal.4th at pp. 214–215.)
  • “In some cases there is no single reason for an employer’s adverse action, and a discriminatory motive may have influenced otherwise legitimate reasons for the employment decision. In Harris v. City of Santa Monica (Harris) the California Supreme Court recognized the traditional McDonnell Douglas burden-shifting test was intended for use in cases presenting a single motive for the adverse action, that is, in ‘cases that do not involve mixed motives.’ As the Court explained, this ‘framework . . . presupposes that the employer has a single reason for taking an adverse action against the employee and that the reason is either discriminatory or legitimate. By hinging liability on whether the employer’s proffered reason for taking the action is genuine or pretextual, the McDonnell Douglas inquiry aims to ferret out the “true” reason for the employer’s action. In a mixed-motives case, however, there is no single “true” reason for the employer’s action.’ ” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1182 [220 Cal.Rptr.3d 42], internal citations omitted.)
  • “Following the California Supreme Court’s decision in Harris, . . . the Judicial Council added CACI No. 2512, to be given when the employer presents evidence of a legitimate reason for the adverse employment action, informing the jurors that even if they find that discrimination was a substantial motivating reason for the adverse action, if the employer establishes that the adverse action nonetheless would have been taken for legitimate reasons, ‘then [the plaintiff] will not be entitled to reinstatement, back pay, or damages.’ ” (Davis v. Farmers Ins. Exchange (2016) 245 Cal.App.4th 1302, 1320−1321 [200 Cal.Rptr.3d 315].)
  • “ ‘[Plaintiff] further argues that for equitable reasons, an employer that wishes to make a same-decision showing must concede that it had mixed motives for taking the adverse employment action instead of denying a discriminatory

motive altogether. But there is no inconsistency when an employer argues that its motive for discharging an employee was legitimate, while also arguing, contingently, that if the trier of fact finds a mixture of lawful and unlawful motives, then its lawful motive alone would have led to the discharge.’ ” (Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th

169, 199 [167 Cal.Rptr.3d 24] [quoting Harris, supra, 56 Cal.App.4th at p.

240].)

• “As a preliminary matter, we reject [defendant]’s claim that the jury could have found no liability on the part of [defendant] had it been properly instructed on the mixed-motive defense at trial. As discussed, the Supreme Court in Harris held that the mixed-motive defense is available under the FEHA, but only as a limitation on remedies and not as a complete defense to liability. Consequently, when the plaintiff proves by a preponderance of the evidence that discrimination was a substantial motivating factor in the adverse employment decision, the employer is liable under the FEHA. When the employer proves by a preponderance of the evidence that it would have made the same decision even in the absence of such discrimination, the employer is still liable under the FEHA, but the plaintiff’s remedies are then limited to declaratory or injunctive relief, and where appropriate, attorney’s fees and costs. As presently drafted, BAJI No. 12.26 does not accurately set forth the parameters of the defense as articulated by the Supreme Court, but rather states that, in a mixed-motive case, ‘the employer is not liable if it can establish by a preponderance of the evidence that its legitimate reason, standing alone, would have induced it to make the same decision.’ By providing that the mixed-motive defense, if proven, is a complete defense to liability, [defendant]’s requested instruction directly conflicts with the holding in Harris. (Alamo v. Practice Management Information Corp. (2013) 219 Cal.App.4th 466, 481 [161 Cal.Rptr.3d 758], internal citations omitted.)
• “Pretext may . . . be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before termination.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 272 [100 Cal.Rptr.3d 296].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1037, 1067

7 Witkin, California Procedure (5th ed. 2008), Judgment § 217

3 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.11 (Matthew Bender)

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

Damages for Wrongful Termination

Understanding Damages in Wrongful Termination

1. Definition: Damages in wrongful termination cases refer to the compensation awarded to an employee who was illegally dismissed. These can include economic losses, emotional distress, and punitive damages.
2. Types of Damages:
   • Economic Damages: Lost wages and benefits, both past (from termination to trial) and future (potential future earnings).
   • Non-Economic Damages: Compensation for emotional distress, pain, and suffering caused by the wrongful termination.
   • Punitive Damages: In cases of particularly egregious conduct by the employer, punitive damages may be awarded to punish and deter future misconduct.

Legal Framework in California

1. Wrongful Termination: In California, this can occur if termination violates an implied contract, anti-discrimination laws, or public policy.
2. Calculating Damages: The process involves assessing the financial impact of the termination and the emotional toll on the employee.
3. Mitigation of Damages: The law requires wrongfully terminated employees to make reasonable efforts to mitigate their losses, such as seeking comparable employment.

Potential Legal Issues and Problems

1. Proving Economic Damages: Determining the exact amount of lost wages and benefits can be complex, especially for future earnings, which might involve projections and expert testimony.
2. Quantifying Non-Economic Damages: Assessing emotional distress is subjective, making it challenging to assign a monetary value.
3. Eligibility for Punitive Damages: These are only awarded in cases of malicious or reckless conduct by the employer, which can be difficult to prove.
4. Mitigation of Damages Disputes: Employers may argue that the employee failed to mitigate damages, potentially reducing the compensation amount.

Examples and Reasoning

1. Case of Discriminatory Termination: An employee is wrongfully terminated based on racial discrimination. Economic damages would include lost wages and benefits. Non-economic damages would cover emotional distress due to discrimination. If the employer’s conduct was particularly malicious, punitive damages might also be appropriate.
2. Breach of Implied Contract Case: An employee is fired in violation of an implied promise of continued employment. Economic damages would be calculated based on the implied contract’s duration and terms. Non-economic damages may be awarded for the mental anguish caused by the unexpected job loss.
3. Failure to Mitigate: An employee who makes no effort to find a new job after wrongful termination may have their damages reduced. The employer must prove that suitable job opportunities were available and that the employee did not pursue them.
4. Limitation on Damages: In cases where the employer can prove that termination was partially justified (e.g., performance issues), the damages awarded might be reduced accordingly.

Conclusion

In wrongful termination cases within California’s legal framework, calculating damages involves a thorough examination of economic and non-economic impacts on the employee. The complexity of these calculations and the requirement for mitigation can lead to various legal challenges. Employers must be cautious in their termination practices to avoid costly damages, while employees should be aware of their rights and responsibilities in seeking compensation for wrongful termination.

__________________________

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Additional Information on Wrongful Termination

Additional Information

Wrongful termination in the context of employment law in the state of California is a complex area of legal concern. It involves situations where an employer unlawfully terminates an employee, and the damages that may result from such wrongful termination. In California, employment law is governed by a combination of state and federal laws, with some unique state-specific provisions. Below, I’ll provide an extensive overview of the law and legal consequences of damages in this context, while also identifying potential problems and providing examples to illustrate key points.

1. At-Will Employment in California:

California is an “at-will” employment state, which means that employers can generally terminate employees for any reason, with or without cause, as long as the reason is not unlawful. Conversely, employees can also resign without notice for any reason. However, there are important exceptions and limitations to this rule.

2. Wrongful Termination Claims:

Wrongful termination occurs when an employer terminates an employee in violation of state or federal employment laws, public policy, or an employment contract. Common wrongful termination claims in California include:

a. Discrimination: Termination based on an employee’s race, gender, age, religion, disability, or other protected characteristic is prohibited under both state and federal laws (e.g., Title VII of the Civil Rights Act).

b. Retaliation: Employers cannot terminate employees for engaging in legally protected activities such as reporting workplace harassment, discrimination, or unsafe conditions.

c. Breach of Contract: If there is an employment contract that specifies the terms of employment, termination must adhere to those terms. This includes contracts that specify “for cause” termination.

d. Violation of Public Policy: Termination for reasons that contravene established public policy, such as firing an employee for reporting illegal activity within the company, may be deemed wrongful.

3. Legal Consequences of Wrongful Termination:

If an employee successfully proves wrongful termination, the legal consequences may include:

a. Compensatory Damages: These damages aim to compensate the employee for losses suffered as a result of the wrongful termination, including lost wages and benefits.

b. Punitive Damages: In cases of extreme misconduct, punitive damages may be awarded to punish the employer and deter similar behavior in the future.

c. Reinstatement: The court may order the employer to reinstate the terminated employee to their former position.

d. Attorney’s Fees and Costs: In some cases, the prevailing employee may recover attorney’s fees and litigation costs.

4. Problems that Could Arise:

Several problems and challenges can arise in wrongful termination cases in California:

a. Burden of Proof: Employees must prove that their termination was unlawful, which can be challenging. Employers may present counterarguments or justifications for their actions.

b. Statute of Limitations: Wrongful termination claims must be filed within specified time limits. If employees wait too long, they may lose their right to pursue a claim.

c. Lack of Documentation: Insufficient evidence or documentation can weaken an employee’s case. Employers often maintain thorough records, making it crucial for employees to do the same.

d. Contractual Limitations: Employment contracts may contain clauses that limit the remedies available to employees in case of termination, making it important to carefully review any such contracts.

5. Examples:

To illustrate these concepts, consider the following examples:

a. Discrimination: An employer fires an older employee due to their age, despite their excellent performance. This could be a case of age discrimination.

b. Retaliation: An employee reports sexual harassment by their supervisor and is subsequently terminated. This could be retaliation for whistleblowing.

c. Breach of Contract: An employment contract specifies that an employee can only be terminated for “cause.” If the employee is fired without a valid reason, it may be a breach of contract.

d. Violation of Public Policy: An employee is fired for refusing to engage in fraudulent activities on behalf of the employer. This may be a violation of public policy.

Conclusion

In conclusion, wrongful termination in California involves complex legal principles, and the legal consequences for employers can be substantial if they are found to be in violation of employment laws. Employees should be aware of their rights and consult with legal counsel if they believe they have been wrongfully terminated. Employers should also seek legal guidance to ensure compliance with employment laws and avoid costly legal disputes.

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Breach of Employment Contract- Wrongful Termination

2406. Breach of Employment Contract—Unspecified Term—Damages

If you find that [name of defendant] [discharged/demoted] [name of plaintiff] in breach of an employment contract, then you must decide the amount of damages, if any, that [name of plaintiff] has proved [he/she/ nonbinary pronoun] is entitled to recover. To make that decision, you must:

1. Decide the amount that [name of plaintiff] would have earned from [name of defendant] up to today, including any benefits and pay increases; [and]
2. Add the present cash value of any future wages and benefits that [he/she/nonbinary pronoun] would have earned after today for the length of time the employment with [name of defendant] was reasonably certain to continue; [and]
3. [Describe any other contract damages that were allegedly caused by defendant’s conduct.]

In determining the period that [name of plaintiff]’s employment was reasonably certain to have continued, you should consider, among other factors, the following:

• [Name of plaintiff]’s age, work performance, and intent regarding continuing employment with [name of defendant];
  • [Name of defendant]’s prospects for continuing the operations involving [name of plaintiff]; and
  • Any other factor that bears on how long [name of plaintiff] would have continued to work.

New September 2003; Revised December 2011

Directions for Use

For an instruction on mitigation, see CACI No. 3963, Affırmative Defense—Employee’s Duty to Mitigate Damages. This instruction should be given when plaintiff claims loss of employment from a wrongful discharge or demotion or a breach of the covenant of good faith and fair dealing. For instructions on present cash value, see CACI No. 3904A, Present Cash Value, and CACI No. 3904B, Use of Present-Value Tables.

Sources and Authority

• Damages for Breach of Contract. Civil Code section 3300.
• “The general rule is that the measure of recovery by a wrongfully discharged

CACI No. 2406                   WRONGFUL TERMINATION

employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. However, before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the other employment was comparable, or substantially similar, to that of which the employee has been deprived; the employee’s rejection of or failure to seek other available employment of a different or inferior kind may not be resorted to in order to mitigate damages.” (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181–182 [89 Cal.Rptr. 737, 474 P.2d 689],

internal citations omitted.)

• “[I]t is our view that in an action for wrongful discharge, and pursuant to the present day concept of employer-employee relations, the term ‘wages’ should be deemed to include not only the periodic monetary earnings of the employee but also the other benefits to which he is entitled as a part of his compensation.” (Wise v. Southern Pac. Co. (1970) 1 Cal.3d 600, 607 [83 Cal.Rptr. 202, 463 P.2d

426].)

• In determining the period that plaintiff’s employment was reasonably certain to have continued, the trial court took into consideration plaintiff’s “ ‘physical condition, his age, his propensity for hard work, his expertise in managing defendants’ offices, the profit history of his operation, [and] the foreseeability of the continued future demand for tax return service to small taxpayers………………………….. ’ ”

(Drzewiecki v. H & R Block, Inc. (1972) 24 Cal.App.3d 695, 705 [101 Cal.Rptr.

169].)

• In cases for wrongful demotion, the measure of damages is “the difference in compensation before and after the demotion.” (Scott v. Pac. Gas & Elec. Co. (1995) 11 Cal.4th 454, 468 [46 Cal.Rptr.2d 427, 904 P.2d 834].)

Secondary Sources

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

§§ 284, 285, 286

Chin et al., California Practice Guide: Employment Litigation, Ch. 17-B, Contract Damages, ¶¶ 17:81, 17:95, 17:105 (The Rutter Group)

4 Wilcox, California Employment Law, Ch. 60, Liability for Wrongful Termination and Discipline, § 60.08[3] (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 249, Employment Law: Termination and Discipline, §§ 249.01, 249.17, 249.50 (Matthew Bender)

Adverse Action Made by Decision Maker Without Animus (from a recommendation from or relied on facts provided by another person who had [discriminatory/retaliatory] intent.)

Adverse Action Based on Recommendation Facts –Wrongful Termination

Adverse Action Made by Decision Maker Without Animus (from a recommendation from or relied on facts provided by another person who had [discriminatory/retaliatory] intent.)

In California employment law, the scenario where an adverse action is made by a decision-maker without animus, based on recommendations or facts provided by another person with discriminatory or retaliatory intent, presents a complex legal challenge. This situation often arises in the context of wrongful termination or other adverse employment actions. Here’s a comprehensive overview of this concept, its legal consequences, potential problems, and illustrative examples:

Legal Framework and Principles

1. Adverse Action by Non-Biased Decision-Maker: This occurs when a decision-maker, who does not hold any discriminatory or retaliatory intent, makes an adverse employment decision (like termination, demotion, or negative evaluation) based on information or recommendations from someone who does have such intent.
2. Legal Basis in California: The California Fair Employment and Housing Act (FEHA) and relevant case law underpin this concept. The key legal principle involved is the “cat’s paw” theory.

“Cat’s Paw” Theory

1. Definition: Named after a fable, this theory applies when a biased individual (who is not the ultimate decision-maker) uses a non-biased decision-maker as a conduit to carry out their discriminatory or retaliatory intent.
2. Application in Law: If it can be demonstrated that the biased individual’s recommendation was a substantial factor in the adverse action, the employer can be held liable, even if the actual decision-maker had no discriminatory intent.

Legal Consequences

1. For Employees: Successfully proving a “cat’s paw” case can lead to remedies typical in wrongful termination or discrimination cases, such as reinstatement, back pay, damages, and attorney’s fees.
2. For Employers: Employers may face legal liability and damages, even if the decision-maker was unbiased, provided the influence of the biased individual is substantiated.

Problems and Challenges

1. Establishing the Influence: The main challenge is to establish the causal link between the biased individual’s input and the decision-maker’s action.
2. Determining Substantial Factor: Assessing whether the biased recommendation was a substantial factor in the adverse decision can be complex.
3. Documenting the Decision Process: Both sides face challenges in documenting and proving the decision-making process and influences.
4. Mixed Motive Issues: Cases where both legitimate and biased motivations are present can be particularly complicated.

Examples

1. Example of “Cat’s Paw” Scenario: An employee is recommended for termination by a supervisor who has demonstrated bias against the employee’s race. The higher-level manager, unaware of this bias, acts on the recommendation and terminates the employee. This could be a case where the “cat’s paw” theory is applicable.
2. Example of Non-Applicability: An employee is terminated based on poor performance evaluations, which are corroborated by multiple sources, including unbiased individuals. In this case, the “cat’s paw” theory may not apply if the decision was not significantly influenced by biased recommendations.

Conclusion

The concept of an adverse action made by a decision-maker without animus, based on the influence of a biased individual, is a nuanced aspect of California employment law. It underscores the importance of thorough and unbiased decision-making processes in employment actions. Both employees and employers must navigate this complex legal terrain with an understanding of how indirect biases can impact employment decisions. Legal counsel is often essential to navigate these complexities effectively.

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

2511. Adverse Action Made by Decision Maker Without Animus (Cat’s Paw)

In this case, the decision to [discharge/[other adverse employment action]] [name of plaintiff] was made by [name of decision maker]. Even if [name of decision maker] did not hold any [discriminatory/retaliatory] intent [or was unaware of [name of plaintiff]’s conduct on which the claim of retaliation is based], [name of defendant] may still be liable for [discrimination/retaliation] if [name of decision maker] followed a recommendation from or relied on facts provided by another person who had [discriminatory/retaliatory] intent.

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

1. That [name of plaintiff]’s [specify protected activity or attribute] was a substantial motivating reason for [name of other person]’s [specify acts on which decision maker relied]; and
2. That [name of other person]’s [specify acts on which decision maker relied] was a substantial motivating reason for [name of decision maker]’s decision to [discharge/[other adverse employment action]] [name of plaintiff].

New December 2012; Revised June 2013, May 2020, November 2020

Directions for Use

Give this instruction if the “cat’s paw” rule is a factor in the case. Under the cat’s paw rule, the person who actually took the adverse employment action against the employee was not acting out of any improper animus. The decision maker, however, acted on information provided by another person who was acting out of discriminatory or retaliatory animus with the objective of causing the adverse employment action. The decision maker is referred to as the “cat’s paw” of the person with the animus. (See Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 100 [16 Cal.Rptr.3d 717]; McGrory v. Applied Signal Technology, Inc. (2013)

212 Cal.App.4th 1510, 1536 [152 Cal.Rptr.3d 154] [accepting the legal premise that an employer may be held liable on the basis of a non-supervisor’s discriminatory motivation].) The cases have not yet defined the scope of the cat’s paw rule when the decision maker relies on the acts of a nonsupervisory coworker or other person involved in the employment decision.

The purpose of this instruction is to make it clear to the jury that they are not to evaluate the motives or knowledge of the decision maker, but rather to decide whether the acts of another person with animus actually caused the adverse action. Give the optional language in the second sentence of the first paragraph in a retaliation case in which the decision maker was not aware of the plaintiff’s conduct

that allegedly led to the retaliation (defense of ignorance). (See Reeves, supra, 121 Cal.App.4th at pp. 106–108.)

Element 1 requires that the protected activity or attribute be a substantial motivating reason for the retaliatory acts. Element 2 requires that the other person’s improper motive be a substantial motivating reason for the decision maker’s action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial Motivating Reason” Explained.)

In both elements 1 and 2, all of the other person’s specific acts need not be listed in all cases. Depending on the facts, doing so may be too cumbersome and impractical. If the specific acts are listed, the list should include all acts on which plaintiff claims the decision maker relied, not just the acts admitted to have been relied on by the decision maker.

Sources and Authority

• “This case presents the question whether an employer may be liable for retaliatory discharge when the supervisor who initiates disciplinary proceedings acts with retaliatory animus, but the cause for discipline is separately investigated and the ultimate decision to discharge the plaintiff is made by a manager with no knowledge that the worker has engaged in protected activities. We hold that so long as the supervisor’s retaliatory motive was an actuating . . . cause of the dismissal, the employer may be liable for retaliatory discharge. Here the evidence raised triable issues as to the existence and effect of retaliatory motive on the part of the supervisor, and as to whether the manager and the intermediate investigator acted as tools or ‘cat’s paws’ for the supervisor, that is, instrumentalities by which his retaliatory animus was carried into effect to plaintiff’s injury.” (Reeves, supra, 121 Cal.App.4th at p. 100.)
• “We do not suggest that discrimination must be alone sufficient to bring about an employment decision in order to constitute a substantial motivating factor. But it is important to recognize that discrimination can be serious, consequential, and even by itself determinative of an employment decision without also being a ‘but for’ cause.” (Harris, supra, 56 Cal.4th at p. 229.)
• “Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. At the same

time, . . . proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original italics.)

• “This concept—which for convenience we will call the ‘defense of ignorance’—poses few analytical challenges so long as the ‘employer’ is conceived as a single entity receiving and responding to stimuli as a unitary,

indivisible organism. But this is often an inaccurate picture in a world where a majority of workers are employed by large economic enterprises with layered and compartmentalized management structures. In such enterprises, decisions significantly affecting personnel are rarely if ever the responsibility of a single actor. As a result, unexamined assertions about the knowledge, ignorance, or motives of ‘the employer’ may be fraught with ambiguities, untested assumptions, and begged questions.” (Reeves, supra, 121 Cal.App.4th at p. 108.)

• “[S]howing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.” (DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 551 [87 Cal.Rptr.3d 99]).
• “[W]e accept Employee’s implicit legal premise that Employer could be liable for [the outside investigator’s] discriminatory motivation if the male executives who actually terminated Employee were merely the cat’s paws of a biased female investigator.” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1536 [152 Cal.Rptr.3d 154].)
• “Certainly a defendant does not conclusively negate the element of causation by showing only that some responsible actors, but not all, were ignorant of the occasion for retaliation.” (Reeves, supra, 121 Cal.App.4th at p. 108.)
• “Here a rational fact finder could conclude that an incident of minor and excusable disregard for a supervisor’s stated preferences was amplified into a ‘solid case’ of ‘workplace violence,’ and that this metamorphosis was brought about in necessary part by a supervisor’s desire to rid himself of a worker who created trouble by complaining of matters the supervisor preferred to ignore. Since those complaints were protected activities under FEHA, a finder of fact must be permitted to decide whether these inferences should in fact be drawn.” (Reeves, supra, 121 Cal.App.4th at p. 121.)
• “Our emphasis on the conduct of supervisors is not inadvertent. An employer can generally be held liable for the discriminatory or retaliatory actions of supervisors. The outcome is less clear where the only actor possessing the requisite animus is a nonsupervisory coworker.” (Reeves, supra, 121 Cal.App.4th at p. 109 fn. 9, original italics, internal citation omitted.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1025, 1026, 1052, 1053

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶ 7:806.5 (The Rutter Group)

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.131 (Matthew Bender) 11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.37[3][a] (Matthew Bender)

Continuing Violation- Failure to Timely File Complaint- Wrongful Termination

Continuing Violation- Failure to Timely File Administrative Complaint

The issue of failing to timely file an administrative complaint, while alleging a continuing violation in the context of wrongful termination and employment law in California, is a nuanced aspect with significant legal implications.

Legal Framework

1. Filing Requirements: Under California law, particularly the Fair Employment and Housing Act (FEHA), individuals who believe they have been wrongfully terminated must first file an administrative complaint with the Department of Fair Employment and Housing (DFEH) before they can file a lawsuit in court.
2. Statute of Limitations: Typically, the complaint must be filed within one year of the alleged wrongful act. However, this period can be extended under specific circumstances, such as the “continuing violation” doctrine.

Continuing Violation Doctrine

1. Definition: This doctrine allows acts that are part of a continuing pattern of discrimination to be considered as part of the same claim, even if some of the acts occurred outside of the statutory filing period.
2. Application: It’s applicable when the conduct is:
   • Repeated and ongoing, rather than isolated incidents.
   • Sufficiently similar in nature.
   • Has not been adequately addressed by the employer.

Legal Consequences

1. For Employees: Failing to file within the statutory period can lead to dismissal of the lawsuit unless the continuing violation doctrine applies.
2. For Employers: If the continuing violation is established, employers might face legal action for older incidents they believed were no longer actionable.

Problems and Challenges

1. Determining Continuing Violation: Establishing what constitutes a continuing violation is complex. The determination depends on the specific facts of each case, and not all patterns of discrimination are considered continuing violations.
2. Documentation and Evidence: Gathering and preserving evidence over extended periods can be challenging for plaintiffs.
3. Awareness and Understanding: Employees might not be aware of their rights or the nuances of the continuing violation doctrine, leading to missed opportunities for legal recourse.
4. Employer Compliance: Employers may struggle with identifying and addressing patterns of discriminatory behavior, leading to liability for older acts.

Examples

1. Example of Continuing Violation: An employee faces repeated, similar discriminatory comments and behaviors over two years, with the most recent incident occurring just within the filing period. The pattern of behavior could be considered a continuing violation, allowing the employee to include earlier incidents in their complaint.
2. Example of Non-Continuing Violation: An employee experienced discrimination but did not experience any related acts within the statutory period. This situation might not qualify as a continuing violation, potentially barring the employee from including earlier incidents in their complaint.

Conclusion

The timely filing of an administrative complaint in wrongful termination cases is crucial in California employment law. The continuing violation doctrine can extend the actionable period under specific circumstances, but its application is complex and fact-dependent. Both employees and employers must navigate these legal waters with caution and awareness, as misunderstandings or misinterpretations can lead to significant legal and financial consequences. It’s always recommended to seek legal counsel for guidance tailored to individual cases.

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

2508. Failure to File Timely Administrative Complaint (Gov. Code, § 12960(e))—Plaintiff Alleges Continuing Violation

[Name of defendant] contends that [name of plaintiff]’s lawsuit may not proceed because [name of plaintiff] did not timely file a complaint with the Department of Fair Employment and Housing (DFEH). A complaint is timely if it was filed within three years of the date on which [name of defendant]’s alleged unlawful practice occurred.

[Name of plaintiff] filed a complaint with the DFEH on [date]. [Name of plaintiff] may recover for acts of alleged [specify the unlawful practice, e.g., harassment] that occurred before [insert date three years before the DFEH complaint was filed], only if [he/she/nonbinary pronoun] proves all of the following:

1. That [name of defendant]’s [e.g., harassment] that occurred before [insert date three years before the DFEH complaint was filed] was similar or related to the conduct that occurred on or after that date;
2. That the conduct was reasonably frequent; and
3. That the conduct had not yet become permanent before that date.

“Permanent” in this context means that the conduct has stopped, [name of plaintiff] has resigned, or [name of defendant]’s statements and actions would make it clear to a reasonable employee that any further efforts to resolve the issue internally would be futile.

New June 2010; Revised December 2011, June 2015, May 2019, May 2020

Directions for Use

Give this instruction if the plaintiff relies on the continuing-violation doctrine in order to avoid the bar of the limitation period of three years within which to file an administrative complaint. (See Gov. Code, § 12960(e).) Although the continuing- violation doctrine is labeled an equitable exception, it may involve triable issues of fact. (See Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 723–724 [85 Cal.Rptr.3d 705].)

If the case involves multiple claims of FEHA violations, replace “lawsuit” in the opening sentence with reference to the particular claim or claims to which the continuing-violation rule may apply.

In the second paragraph, insert the date on which the administrative complaint was filed and the dates on which both sides allege that the complaint requirement was triggered. The verdict form should ask the jury to specify the date that it finds that the requirement accrued. If there are multiple claims with different continuing- violation dates, repeat this paragraph for each claim.

The plaintiff has the burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with the DFEH. (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345 [172 Cal.Rptr.3d 686].) This burden of proof extends to any excuse or justification for the failure to timely file, such as the continuing-violation exception. (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402 [194 Cal.Rptr.3d 689].)

Sources and Authority

• Administrative Complaint for FEHA Violation. Government Code section 12960.
• “At a jury trial, the facts are presented and the jury must decide whether there was a continuing course of unlawful conduct based on the law as stated in CACI No. 2508.” (Jumaane, supra, 241 Cal.App.4th at p. 1401.)
• “Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing (Department) and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA. As for the applicable limitation period, the FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred,’ with an exception for delayed discovery not relevant here.” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63 [105 Cal.Rptr.2d 652], original italics, internal citations omitted.)
• “[I]t is ‘plaintiff’s burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with [DFEH] and obtaining a right-to-sue letter.’ ” (Kim, supra, 226 Cal.App.4th at p. 1345.)
• “[W]hen defendant has asserted the statute of limitation defense, the plaintiff has the burden of proof to show his or her claims are timely under the continuing violation doctrine.” (Jumaane, supra, 241 Cal.App.4th at p. 1402.)
• “Under the continuing violation doctrine, a plaintiff may recover for unlawful acts occurring outside the limitations period if they continued into that period. The continuing violation doctrine requires proof that (1) the defendant’s actions inside and outside the limitations period are sufficiently similar in kind; (2) those actions occurred with sufficient frequency; and (3) those actions have not acquired a degree of permanence.” (Wassmann v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 850–851 [234 Cal.Rptr.3d 712], internal citations omitted.)
• “ ‘[P]ermanence’ in the context of an ongoing process of accommodation of disability, or ongoing disability harassment, should properly be understood to mean the following: that an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain

reasonable accommodation or end harassment will be futile. [¶] Thus, when an employer engages in a continuing course of unlawful conduct under the FEHA by refusing reasonable accommodation of a disabled employee or engaging in disability harassment, and this course of conduct does not constitute a constructive discharge, the statute of limitations begins to run, not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain. Accordingly, an employer who is confronted with an employee seeking accommodation of disability or relief from disability harassment may assert control over its legal relationship with the employee either by accommodating the employee’s requests, or by making clear to the employee in a definitive manner that it will not be granting any such requests, thereby commencing the running of the statute of limitations.” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823–824 [111 Cal.Rptr.2d 87, 29 P.3d 175], internal citations omitted.)

• “[T]he Richards court interpreted section 12960 to mean that when a continuing pattern of wrongful conduct occurs partly in the statutory period and partly outside the statutory period, the limitations period begins to accrue once an employee is on notice of the violation of his or her rights and on notice that ‘litigation, not informal conciliation, is the only alternative for the vindication of his or her rights.’ ” (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1412 [159 Cal.Rptr.3d 749].)
  • “A continuing violation may be established by demonstrating ‘a company wide policy or practice’ or ‘a series of related acts against a single individual.’ ‘The continuing violation theory generally has been applied in the context of a continuing policy and practice of discrimination on a company-wide basis; a plaintiff who shows that a policy and practice operated at least in part within the limitation period satisfies the filing requirements. “[A] systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period. The reason is that the continuing system of discrimination operates against the employee and violates his or her rights up to a point in time that falls within the applicable limitations period. Such continuing violations are most likely to occur in the matter of placements or promotions.” ’ The plaintiff must demonstrate that at least one act occurred within the filing period and that ‘the harassment is “more than the occurrence of isolated or sporadic acts of intentional discrimination.” . . . The relevant distinction is between the occurrence of isolated, intermittent acts of discrimination and a persistent, on-going pattern.’ ” (Morgan, supra, 88 Cal.App.4th at p. 64, internal citations omitted.)
  • “[A] continuing violation claim will likely fail if the plaintiff knew, or through the exercise of reasonable diligence would have known, [the plaintiff] was being

T

discriminated against at the time the earlier events occurred.” (Morgan, supra, 88 Cal.App.4th at p. 65.)

• “The Supreme Court has extended the continuing violation doctrine to retaliation claims. And the doctrine also applies to racial harassment claims. Indeed, as we observed in Morgan v. Regents of University of California, supra, 88 Cal.App.4th 52, 65: ‘Cases alleging a hostile work environment due to racial or sexual harassment are often found to come within the continuing violations framework.’ ” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 270

[100 Cal.Rptr.3d 296], internal citations omitted.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1065 4 Witkin, California Procedure (5th ed. 2008) Actions, § 564

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:561.1, 7:975 (The Rutter Group)

Chin et al., California Practice Guide: Employment Litigation, Ch. 16-A, Failure To Exhaust Administrative Remedies, ¶ 16:85 (The Rutter Group)

3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal Employment Opportunity Laws, § 43.01[4] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.51[1] (Matthew Bender)

10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful Termination and Discipline, § 100.59 (Matthew Bender)

Prohibition of Discrimination in Employment– Wrongful Termination

Prohibition of Discrimination in Employment

Discrimination in the context of wrongful termination and employment law in the state of California is a complex and multifaceted area of the law that is governed by both federal and state statutes.

1. Legal Framework:

Federal Laws: The primary federal laws that address discrimination in employment include:

• Title VII of the Civil Rights Act of 1964: Prohibits discrimination on the basis of race, color, religion, sex, or national origin.
• Age Discrimination in Employment Act (ADEA): Prohibits age discrimination against individuals aged 40 and older.
• Americans with Disabilities Act (ADA): Prohibits discrimination based on disability.

State Laws: In California, there are additional protections under the Fair Employment and Housing Act (FEHA), which expands on federal law and provides broader protection for employees. FEHA prohibits discrimination based on the following factors:

• Race, color, national origin, ancestry, or religion.
• Sex, gender, gender identity, or gender expression.
• Sexual orientation.
• Age (40 and older).
• Disability, both physical and mental.
• Genetic information.
• Marital status.
• Pregnancy, childbirth, or related medical conditions.

2. Wrongful Termination:

In California, wrongful termination occurs when an employer terminates an employee’s employment in violation of federal or state anti-discrimination laws or in breach of an employment contract. An employee may file a lawsuit for wrongful termination if they believe their termination was discriminatory or in violation of their employment contract.

3. Legal Consequences:

The legal consequences of discrimination in wrongful termination cases in California can be severe for employers. These consequences may include:

• Back pay and front pay: The employee may be entitled to recover lost wages and future earnings.
• Reinstatement: In some cases, the court may order the employer to reinstate the terminated employee to their previous position.
• Compensatory damages: Employees may be awarded compensation for emotional distress, pain, and suffering.
• Punitive damages: In cases of willful misconduct, employers may be subject to punitive damages as a deterrent.

4. Problems That Could Arise:

Several problems can arise in discrimination cases related to wrongful termination:

a. Burden of Proof: Employees must prove that discrimination was a motivating factor in their termination. This can be challenging as employers often provide legitimate reasons for termination, such as poor performance.

b. Retaliation: Employees who assert their rights under anti-discrimination laws may face retaliation. Proving retaliation can be difficult, but it is also illegal.

c. Mixed-Motive Cases: Cases where there may be both legitimate and discriminatory reasons for termination can be legally complex.

d. Inconsistent Documentation: Employers should maintain consistent records and documentation regarding performance issues and terminations to avoid accusations of pretext.

5. Examples:

Example 1: Sarah, a 45-year-old woman, works for a tech company in California. She is consistently passed over for promotions in favor of younger employees. When she complains to HR, she is terminated for “poor performance.” Sarah believes she was wrongfully terminated due to age discrimination under both ADEA and FEHA.

Example 2: James, a gay man, works for a retail store in California. After he publicly comes out, he faces harassment from colleagues and is ultimately terminated. James files a wrongful termination lawsuit, alleging discrimination based on sexual orientation, which is prohibited under FEHA.

6. Legal Reasoning:

California’s legal framework is designed to protect employees from discrimination in the workplace comprehensively. The state’s laws provide broader protections than federal law, and the burden of proof is often lower for employees. Courts in California are generally proactive in addressing workplace discrimination, making it crucial for employers to adhere to anti-discrimination laws and maintain accurate records.

Conclusion

In conclusion, discrimination in wrongful termination cases under California employment law is a critical issue that is governed by a robust legal framework. Employers must be aware of the laws, avoid discriminatory practices, and maintain clear documentation to prevent legal problems and consequences associated with discrimination in the workplace. Employees who believe they have been wrongfully terminated based on discrimination have the option to seek legal remedies and hold their employers accountable.

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

Additional Information

Legal Framework for Prohibition of Discrimination in Employment in California

1. Governing Laws:
   • Fair Employment and Housing Act (FEHA): The primary state law prohibiting workplace discrimination.
   • Title VII of the Civil Rights Act of 1964: A federal law also applicable to California employers, prohibiting discrimination on certain grounds.
2. Protected Characteristics:
   • FEHA prohibits discrimination based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, genetic information, age (40 and older), pregnancy, childbirth, and related medical conditions.
3. Scope of Employment:
   • The laws cover various aspects of employment, including hiring, firing, promotions, training, wages, and benefits.

Wrongful Termination Due to Discrimination

1. Definition:
   • Termination is considered wrongful if an employee is fired primarily due to any of the protected characteristics under FEHA or other relevant laws.
2. Legal Consequences:
   • Compensatory Damages: Includes lost wages, benefits, and compensation for emotional distress.
   • Punitive Damages: In cases of egregious conduct, designed to punish the employer.
   • Reinstatement: The wrongfully terminated employee may be reinstated to their position.
   • Attorney’s Fees and Costs: Employers may be required to pay the legal fees of the prevailing party.

Potential Problems and Challenges

1. Proving Discrimination: Demonstrating that termination was due to discrimination can be complex. Direct evidence is rare; thus, cases often rely on circumstantial evidence.
2. Retaliation Concerns: Employees might fear retaliation for asserting their rights, though anti-retaliation protections are in place.
3. Statute of Limitations: Claims must be filed within a specified timeframe (generally three years for FEHA claims), or the right to sue is lost.

Examples and Reasoning

• Example 1: An employee with a consistently positive performance record is suddenly terminated after revealing their sexual orientation or pregnancy.
  • Logic: The timing and lack of other valid reasons might indicate the termination was due to the employee’s sexual orientation or pregnancy, constituting illegal discrimination.
• Example 2: An older employee is replaced by a significantly younger individual, despite having requisite skills and a good performance history.
  • Logic: This could suggest age discrimination, especially if there’s a pattern of replacing older employees with younger ones.

Conclusion

Discrimination in the context of wrongful termination in California’s employment law can be legally complex and fraught with challenges. Demonstrating discrimination often requires a careful analysis of the circumstances surrounding the termination and a thorough understanding of the protections afforded by laws like FEHA. Employers must be diligent in ensuring that their employment practices are free from discriminatory motives, while employees should be aware of their rights and the avenues available for redress in cases of suspected wrongful termination due to discrimination. Legal counsel is often crucial in navigating these matters effectively.