Wrongful Termination Additional Info 5

Retaliation- Wrongful Termination Additional Info 5

Retaliation

Retaliation in the context of wrongful termination and employment law in California is a significant legal issue that can lead to complex legal consequences. It involves an employer taking adverse action against an employee for engaging in legally protected activities. Understanding the nuances of retaliation laws is crucial for both employers and employees in California.

Legal Framework

1. Federal and State Laws: Both federal laws, like Title VII of the Civil Rights Act of 1964, and state laws, specifically the California Fair Employment and Housing Act (FEHA), protect employees from retaliation.
2. Protected Activities: These include filing a complaint, participating in an investigation, or opposing discriminatory practices.
3. Adverse Employment Actions: Actions by an employer that negatively affect the employee’s job status or work environment. This includes termination, demotion, salary reduction, or any other form of penalization.
4. Burden of Proof: The employee must first establish a prima facie case of retaliation by showing participation in a protected activity, subsequent adverse employment action, and a causal link between them. The burden then shifts to the employer to articulate a legitimate, non-retaliatory reason for the action.

Legal Consequences

• Lawsuits and Damages: Employees can file lawsuits for retaliation, potentially leading to reinstatement, back pay, compensatory and punitive damages, and attorney’s fees.
• Reputational Harm: Employers may suffer reputational damage, impacting their public image and business relationships.
• Regulatory Penalties: Regulatory bodies may impose penalties or sanctions on the employer.

Potential Problems and Examples

1. Termination after Complaint: An employee files a sexual harassment complaint and is subsequently terminated. If the timing suggests a causal link, this could be seen as retaliation.
2. Demotion after Testifying: An employee who testifies in a colleague’s discrimination case and then faces demotion could argue that the demotion is retaliatory.
3. Change in Job Responsibilities: Subtle forms of retaliation, like significantly changing job responsibilities or workplace isolation after engaging in protected activities, can also be problematic.
4. Performance Reviews: Negative performance reviews following protected activities, especially if previous reviews were positive, can be indicative of retaliation.

Reasoning and Logic

• Causation Challenge: Establishing a direct causal link between the protected activity and adverse action is challenging. Employers may argue that the adverse action was due to legitimate business reasons.
• Timing and Evidence: The timing of the adverse action relative to the protected activity can be a strong indicator of retaliation. However, employers might provide documentation to justify their actions as non-retaliatory.
• Subtlety of Actions: Some retaliatory actions are subtle and harder to prove. They may not directly affect job status but can significantly impact work conditions or future career prospects.
• Legal Ambiguities: The legal interpretation of what constitutes a ‘protected activity’ and an ‘adverse action’ can vary, leading to complexities in establishing a retaliation claim.

Conclusion

Retaliation in the context of California employment law represents a critical area where both employees and employers must tread carefully. For employees, it’s about understanding their rights and recognizing when those rights are being violated. For employers, it’s about ensuring that any employment action, especially following an employee’s engagement in protected activities, is well-documented and justified by legitimate business reasons. Navigating these issues requires a comprehensive understanding of both federal and state laws and careful consideration of the specific circumstances of each case.

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

Additional Information

Retaliation in the context of wrongful termination and employment law in the state of California is a critical and complex legal issue.

1. Retaliation Laws in California:California has robust employment laws that protect employees from retaliation by their employers. Retaliation occurs when an employer takes adverse action against an employee in response to that employee engaging in legally protected activities, such as reporting workplace misconduct, discrimination, harassment, or participating in whistleblowing. Some key laws and statutes relevant to retaliation in California include:

• California Fair Employment and Housing Act (FEHA): Under FEHA, it’s illegal for employers to retaliate against employees for engaging in protected activities, such as reporting workplace discrimination or harassment.Whistleblower Protection: California Labor Code Section 1102.5 protects employees who report violations of law, such as fraud, safety violations, or other illegal activities, from retaliation by their employers.Public Policy Exceptions: California recognizes a public policy exception to the at-will employment doctrine. This means that an employer may not terminate an employee if it violates a fundamental public policy, which includes retaliatory terminations.

2. Examples of Retaliation:a. Wrongful Termination: If an employee is fired for reporting workplace harassment, unsafe conditions, or illegal activities, and the termination can be linked to the protected activity, it may be considered retaliatory.b. Demotion or Negative Employment Actions: Retaliation can take various forms, such as demotion, reduction in pay, transfer to a less favorable position, or denial of promotions based on an employee’s engagement in protected activities.c. Hostile Work Environment: Creating a hostile work environment as retaliation, such as subjecting an employee to increased scrutiny, unfounded disciplinary actions, or harassment, can also be considered retaliation.

3. Legal Consequences of Retaliation:Employers who engage in retaliation in California can face serious legal consequences, including:a. Civil Lawsuits: Employees who believe they have been subjected to retaliation can file lawsuits against their employers seeking damages, including back pay, front pay, emotional distress damages, and attorney’s fees.b. Penalties: Employers found guilty of retaliation may be subject to civil penalties, which can be substantial.c. Reinstatement or Rehiring: Courts may order the reinstatement or rehiring of the affected employee.d. Injunctions: Courts can issue injunctions prohibiting employers from engaging in further retaliatory conduct.

4. Problems that Could Arise:While retaliation laws in California are designed to protect employees, several problems can arise in practice:a. Proving Retaliation: It can be challenging to establish a direct link between the protected activity and the adverse employment action. Employers may argue legitimate reasons for termination or other actions, making it difficult for employees to prove retaliation.b. Subjectivity: Retaliation cases often involve subjective elements, such as the intent of the employer. This can lead to disputes over the true motives behind employment decisions.c. Burden of Proof: Employees have the burden of proving retaliation, which can be an arduous task, requiring evidence and witnesses to support their claims.d. Confidentiality Concerns: Whistleblowers may fear retaliation and not report illegal activities or unsafe conditions due to concerns about confidentiality and potential consequences.In conclusion, retaliation in the context of wrongful termination and employment law in California is a complex issue with significant legal consequences. Employers must be aware of their obligations under state law, while employees should be informed of their rights and protections. The potential problems in proving retaliation underline the importance of consulting with experienced employment law attorneys when facing such issues. It’s essential to navigate these legal matters carefully to ensure that both employees’ rights and employers’ interests are appropriately balanced within the boundaries of California employment law.

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

2505. Retaliation—Essential Factual Elements (Gov. Code, § 12940(h))

[Name of plaintiff] claims that [name of defendant] retaliated against [him/ her/nonbinary pronoun] for [describe activity protected by the FEHA]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] [describe protected activity];
2. [That [name of defendant] [discharged/demoted/[specify other adverse employment action]] [name of plaintiff];]

[or]

[That [name of defendant] subjected [name of plaintiff] to an adverse employment action;]

[or]

[That [name of plaintiff] was constructively discharged;]

• That [name of plaintiff]’s [describe protected activity] was a substantial motivating reason for [name of defendant]’s [decision to [discharge/demote/[specify other adverse employment action]]

[name of plaintiff]/conduct];

• That [name of plaintiff] was harmed; and
• That [name of defendant]’s decision to [discharge/demote/[specify other adverse employment action]] [name of plaintiff] was a substantial factor in causing [him/her/nonbinary pronoun] harm.

[[Name of plaintiff] does not have to prove [discrimination/harassment] in order to be protected from retaliation. If [he/she/nonbinary pronoun] [reasonably believed that [name of defendant]’s conduct was unlawful/ requested a [disability/religious] accommodation], [he/she/nonbinary pronoun] may prevail on a retaliation claim even if [he/she/nonbinary pronoun] does not present, or prevail on, a separate claim for [discrimination/harassment/[other]].]

New September 2003; Revised August 2007, April 2008, October 2008, April 2009,

June 2010, June 2012, December 2012, June 2013, June 2014, June 2016,

December 2016

Directions for Use

In elements 1 and 3, describe the protected activity in question. Government Code section 12940(h) provides that it is unlawful to retaliate against a person “because the person has opposed any practices forbidden under [Government Code sections

12900 through 12966] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA].” It is also unlawful to retaliate or otherwise discriminate against a person for requesting an accommodation for religious practice or disability, regardless of whether the request was granted. (Gov. Code, § 12940(l)(4) [religious practice], (m)(2) [disability].)

Read the first option for element 2 if there is no dispute as to whether the employer’s acts constituted an adverse employment action. Read the second option and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether there was an adverse employment action is a question of fact for the jury. For example, the case may involve a pattern of employer harassment consisting of acts that might not individually be sufficient to constitute 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].) Give both the first and second options if the employee presents evidence supporting liability under both a sufficient-single-act theory or a pattern-of-harassment theory. (See, e.g., Wysinger

v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 423–424 [69 Cal.Rptr.3d 1].) Also select “conduct” in element 3 if the second option or both the first and second options are included for element 2.

Retaliation in violation of the FEHA may be established by constructive discharge; that is, that the employer intentionally created or knowingly permitted working conditions to exist that were so intolerable that a reasonable person in the employee’s position would have had no reasonable alternative other than to resign. (See Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1253 [76 Cal.Rptr.3d 632].) If constructive discharge is alleged, give the third option for element 2 and also give CACI No. 2510, “Constructive Discharge” Explained. Also select “conduct” in element 3 if the third option is included for element 2.

Element 3 requires that the protected activity be a substantial motivating reason for the retaliatory acts. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; Alamo v. Practice Management Information

Corp. (2013) 219 Cal.App.4th 466, 479 [161 Cal.Rptr.3d 758]; see also CACI No. 2507, “Substantial Motivating Reason” Explained.)

Note that there are two causation elements. There must be a causal link between the retaliatory animus and the adverse action (see element 3), and there must be a causal link between the adverse action and damages (see element 5). (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81 Cal.Rptr.3d 406].)

This instruction has been criticized in dictum because it is alleged that there is no element requiring retaliatory intent. (See Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1229–1231 [136 Cal.Rptr.3d 472].) The court urged the Judicial Council to redraft the instruction and the corresponding special verdict form so as to clearly state that retaliatory intent is a necessary element of a retaliation claim under FEHA.

The jury in the case was instructed per element 3 “that Richard Joaquin’s reporting that he had been sexually harassed was a motivating reason for the City of Los

Angeles’ decision to terminate Richard Joaquin’s employment or deny Richard Joaquin promotion to the rank of sergeant.” The committee believes that the instruction as given is correct for the intent element in a retaliation case. (Cf. Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 127–132 [199 Cal.Rptr.3d 462] [for disability discrimination, “substantial motivating reason” is only language required to express intent].) However, in cases such as Joaquin that involve allegations of a prohibited motivating reason (based on a report of sexual harassment) and a permitted motivating reason (based on a good faith belief that the report was falsified), the instruction may need to be modified to make it clear that plaintiff must prove that defendant acted based on the prohibited motivating reason and not the permitted motivating reason.

Sources and Authority

• Retaliation Prohibited Under Fair Employment and Housing Act. Government Code section 12940(h).
• Retaliation for Requesting Reasonable Accommodation for Religious Practice and Disability Prohibited. Government Code section 12940(l)(4), (m)(2).
• “Person” Defined Under Fair Employment and Housing Act. Government Code section 12925(d).
• Prohibited Retaliation. Title 2 California Code of Regulations section 11021.
• “[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and the burden shifts back to the employee to prove intentional retaliation.” (Yanowitz, supra, 36 Cal.4th at p. 1042, internal citations omitted.)
• “Actions for retaliation are ‘inherently fact-driven’; it is the jury, not the court, that is charged with determining the facts.” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 299 [156 Cal.Rptr.3d 851].)
• “It is well established that a plaintiff in a retaliation case need only prove that a retaliatory animus was at least a substantial or motivating factor in the adverse employment decision.” (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1492 [102 Cal.Rptr.3d 431].)
• “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.” (Yanowitz, supra, 36 Cal.4th at p. 1052.)

• “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.)
• “[U]nder certain circumstances, a retaliation claim may be brought by an employee who has complained of or opposed conduct, even when a court or jury subsequently determines the conduct actually was not prohibited by the FEHA. Indeed, this precept is well settled. An employee is protected against retaliation if the employee reasonably and in good faith believed that what he or she was opposing constituted unlawful employer conduct such as sexual harassment or sexual discrimination.” (Miller v. Department of Corr. (2005) 36 Cal.4th 446, 473–474 [30 Cal.Rptr.3d 797, 115 P.3d 77], internal citations omitted.)
• “Clearly, section 12940, subdivision (h) encompasses a broad range of protected activity. An employee need not use specific legal terms or buzzwords in opposing discrimination. Nor is it necessary for an employee to file a formal charge. The protected activity element may be established by evidence that the plaintiff threatened to file a discrimination charge, by a showing that the plaintiff mistakenly, but reasonably and sincerely believed he was opposing discrimination, or by evidence an employer believed the plaintiff was a potential witness in another employee’s FEHA action.” (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652 [163 Cal.Rptr.3d 392], internal citations and footnote omitted.)
• “ ‘Standing alone, an employee’s unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee’s opposition was based upon a reasonable belief that the employer was engaging in discrimination.’ ‘[C]omplaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.’ [¶] But employees need not explicitly and directly inform their employer that they believe the employer’s conduct was discriminatory or otherwise forbidden by FEHA.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046 [207 Cal.Rptr.3d 120], internal citation omitted.)
• “The relevant question . . . is not whether a formal accusation of discrimination is made but whether the employee’s communications to the employer sufficiently convey the employee’s reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner.” (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1193 [220 Cal.Rptr.3d 42].)
• “Notifying one’s employer of one’s medical status, even if such medical status
•  

constitutes a ‘disability’ under FEHA, does not fall within the protected activity identified in subdivision (h) of section 12940—i.e., it does not constitute engaging in opposition to any practices forbidden under FEHA or the filing of a complaint, testifying, or assisting in any proceeding under FEHA.” (Moore v.

Regents of University of California (2016) 248 Cal.App.4th 216, 247 [206

Cal.Rptr.3d 841].)

• “[Plaintiff]’s advocacy for the disabled community and opposition to elimination of programs that might benefit that community do not fall within the definition of protected activity. [Plaintiff] has not shown the [defendant]’s actions amounted to discrimination against disabled citizens, but even if they could be so construed, discrimination by an employer against members of the general public is not a prohibited employment practice under the FEHA.” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 383 [209 Cal.Rptr.3d 809], original italics.)
  • “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, supra, 157 Cal.App.4th at p. 424, internal citations omitted.)
  • “A long period between an employer’s adverse employment action and the employee’s earlier protected activity may lead to the inference that the two events are not causally connected. But if between these events the employer engages in a pattern of conduct consistent with a retaliatory intent, there may be a causal connection.” (Wysinger, supra, 157 Cal.App.4th at p. 421, internal citation omitted.)
  • “Both direct and circumstantial evidence can be used to show an employer’s intent to retaliate. ‘Direct evidence of retaliation may consist of remarks made by decisionmakers displaying a retaliatory motive.’ Circumstantial evidence typically relates to such factors as the plaintiff’s job performance, the timing of events, and how the plaintiff was treated in comparison to other workers.” (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153 [119 Cal.Rptr.2d 131], internal citations omitted.)
  • “The retaliatory motive is ‘proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter.’ ‘The causal link may be established by an inference derived from circumstantial evidence, “such as the employer’s knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” ’ ” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 615 [262 Cal.Rptr. 842], internal citations omitted.)
  • “[A]n employer generally can be held liable for the retaliatory actions of its

supervisors.” (Wysinger, supra, 157 Cal.App.4th at p. 420.)

• “Plaintiff, although a partner, is a person whom section 12940, subdivision (h) protects from retaliation for opposing the partnership-employer’s harassment against those employees.” (Fitzsimons v. California Emergency Physicians Medical Group (2012) 205 Cal.App.4th 1423, 1429 [141 Cal.Rptr.3d 265].)
• “[A]n employer may be found to have engaged in an adverse employment action, and thus liable for retaliation under section 12940(h), ‘by permitting . . . fellow employees to punish [him] for invoking [his] rights.’ We therefore hold that an employer may be held liable for coworker retaliatory conduct if the employer knew or should have known of coworker retaliatory conduct and either participated and encouraged the conduct, or failed to take reasonable actions to end the retaliatory conduct.” (Kelley v. The Conco Cos. (2011) 196 Cal.App.4th 191, 213 [126 Cal.Rptr.3d 651], internal citation omitted.)
• “[T]he employer is liable for retaliation under section 12940, subdivision (h), but nonemployer individuals are not personally liable for their role in that retaliation.” (Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173 [72 Cal.Rptr.3d 624, 177 P.3d 232].)
• “ ‘The legislative purpose underlying FEHA’s prohibition against retaliation is to prevent employers from deterring employees from asserting good faith discrimination complaints     ’ Employer retaliation against employees who are

believed to be prospective complainants or witnesses for complainants undermines this legislative purpose just as effectively as retaliation after the filing of a complaint. To limit FEHA in such a way would be to condone ‘an absurd result’ that is contrary to legislative intent. We agree with the trial court that FEHA protects employees against preemptive retaliation by the employer.” (Steele, supra, 162 Cal.App.4th at p. 1255, internal citations omitted.)

• “ ‘The plaintiff’s burden is to prove, by competent evidence, that the employer’s proffered justification is mere pretext; i.e., that the presumptively valid reason for the employer’s action was in fact a coverup.      In responding to the

employer’s showing of a legitimate reason for the complained-of action, the plaintiff cannot “ ‘simply show the employer’s decision was wrong, mistaken, or unwise. Rather, the employee ‘ “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,”…………………………………………………………… and hence infer “that

the employer did not act for the [asserted] non-discriminatory reasons.” ’ ” ’ ” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1409 [194

Cal.Rptr.3d 689].)

• “The showing of pretext, while it may indicate retaliatory intent or animus, is not the sole means of rebutting the employer’s evidence of nonretaliatory intent. ‘ “While ‘pretext’ is certainly a relevant issue in a case of this kind, making it a central or necessary issue is not sound. The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the

challenged action was the product of discriminatory or retaliatory animus. The employer’s mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to a judgment in his favor.” ’ ” (Light v.

Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 94 [221 Cal.Rptr.3d 668], original italics.)

• “Government Code section 12940, subdivision (h), does not shield an employee against termination or lesser discipline for either lying or withholding information during an employer’s internal investigation of a discrimination claim. In other words, public policy does not protect deceptive activity during an internal investigation. Such conduct is a legitimate reason to terminate an at-will employee.” (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1528 [152 Cal.Rptr.3d 154], footnotes omitted.)
  • “Although appellant does not argue she was constructively discharged, such a claim is not necessary to find unlawful retaliation.” (McCoy, supra, 216 Cal.App.4th at p. 301.)
  • “The phrase ‘because of’ [in Gov. Code, § 12940(a)] is ambiguous as to the type or level of intent (i.e., motivation) and the connection between that motivation and the decision to treat the disabled person differently. This ambiguity is closely related to [defendant]’s argument that it is liable only if motivated by discriminatory animus. [¶] The statutory ambiguity in the phrase ‘because of” was resolved by our Supreme Court about six months after the first jury trial [in Harris, supra, 56 Cal.4th at p. 203].” (Wallace, supra, 245 Cal.App.4th at p. 127.)
  • “ ‘[W]hile discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration.’ ” (Laker v. Board of Trustees of California State University (2019) 32 Cal.App.5th 745, 772 [244 Cal.Rptr.3d

238].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, §§ 1028, 1052–1054

Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII And The California Fair Employment And Housing Act, ¶¶ 7:121–7:205 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, §§ 2.83–2.88

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, 115.94 (Matthew Bender) California Civil Practice: Employment Litigation, §§ 2:74–2:75 (Thomson Reuters)

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

Additional Information

Retaliation- Wrongful Termination Additional Info 5

Retaliation in the context of wrongful termination and employment law in the state of California is a critical and complex legal issue.

1. Retaliation Laws in California:California has robust employment laws that protect employees from retaliation by their employers. Retaliation occurs when an employer takes adverse action against an employee in response to that employee engaging in legally protected activities, such as reporting workplace misconduct, discrimination, harassment, or participating in whistleblowing. Some key laws and statutes relevant to retaliation in California include:

• California Fair Employment and Housing Act (FEHA): Under FEHA, it’s illegal for employers to retaliate against employees for engaging in protected activities, such as reporting workplace discrimination or harassment.Whistleblower Protection: California Labor Code Section 1102.5 protects employees who report violations of law, such as fraud, safety violations, or other illegal activities, from retaliation by their employers.Public Policy Exceptions: California recognizes a public policy exception to the at-will employment doctrine. This means that an employer may not terminate an employee if it violates a fundamental public policy, which includes retaliatory terminations.

2. Examples of Retaliation:a. Wrongful Termination: If an employee is fired for reporting workplace harassment, unsafe conditions, or illegal activities, and the termination can be linked to the protected activity, it may be considered retaliatory.b. Demotion or Negative Employment Actions: Retaliation can take various forms, such as demotion, reduction in pay, transfer to a less favorable position, or denial of promotions based on an employee’s engagement in protected activities.c. Hostile Work Environment: Creating a hostile work environment as retaliation, such as subjecting an employee to increased scrutiny, unfounded disciplinary actions, or harassment, can also be considered retaliation.3. Legal Consequences of Retaliation:Employers who engage in retaliation in California can face serious legal consequences, including:a. Civil Lawsuits: Employees who believe they have been subjected to retaliation can file lawsuits against their employers seeking damages, including back pay, front pay, emotional distress damages, and attorney’s fees.b. Penalties: Employers found guilty of retaliation may be subject to civil penalties, which can be substantial.c. Reinstatement or Rehiring: Courts may order the reinstatement or rehiring of the affected employee.d. Injunctions: Courts can issue injunctions prohibiting employers from engaging in further retaliatory conduct.4. Problems that Could Arise:While retaliation laws in California are designed to protect employees, several problems can arise in practice:a. Proving Retaliation: It can be challenging to establish a direct link between the protected activity and the adverse employment action. Employers may argue legitimate reasons for termination or other actions, making it difficult for employees to prove retaliation.b. Subjectivity: Retaliation cases often involve subjective elements, such as the intent of the employer. This can lead to disputes over the true motives behind employment decisions.c. Burden of Proof: Employees have the burden of proving retaliation, which can be an arduous task, requiring evidence and witnesses to support their claims.d. Confidentiality Concerns: Whistleblowers may fear retaliation and not report illegal activities or unsafe conditions due to concerns about confidentiality and potential consequences.In conclusion, retaliation in the context of wrongful termination and employment law in California is a complex issue with significant legal consequences. Employers must be aware of their obligations under state law, while employees should be informed of their rights and protections. The potential problems in proving retaliation underline the importance of consulting with experienced employment law attorneys when facing such issues. It’s essential to navigate these legal matters carefully to ensure that both employees’ rights and employers’ interests are appropriately balanced within the boundaries of California employment law.

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.

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

Retaliation- Wrongful Termination Additional Info 5

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.

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.)- Wrongful Termination Additional Info 5

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 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)

Wrongful Discharge in Violation of Public Policy- Wrongful Termination Additional Info 5

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.

Wrongful Discharge in Violation of Public Policy- Wrongful Termination Additional Info 5

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.

Wrongful Discharge in Violation of Public Policy- Wrongful Termination Additional Info 5

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

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

Wrongful Discharge in Violation of Public Policy- Wrongful Termination Additional Info 5

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.

Mixed Motives- Limitations on Remedies- Same Decision- Wrongful Termination Additional Info 5

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.

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

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)

Bias- Wrongful Termination Additional Info 5

Bias

California law, particularly the Fair Employment and Housing Act (FEHA), provides a comprehensive framework for addressing issues of bias and wrongful termination in the workplace.

Bias is generally understood as any prejudice or unfair treatment of an employee based on specific protected characteristics.

These characteristics include race, religion, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.

Examples

Race Bias

1. Racial Bias: This involves unfavorable treatment of an employee due to their race. For instance, if an African American employee is terminated for a minor mistake while their Caucasian colleagues make similar mistakes without repercussions, this could be seen as racial bias.

Gender Bias

1. Gender Bias: This occurs when an employee is treated unfairly because of their gender. For example, if a female employee is fired for being ‘too aggressive’ in meetings, whereas male colleagues exhibiting the same behavior are praised, this could be a case of gender bias.

Age Bias

1. Age Bias: This type of bias involves discrimination against an employee because of their age. An example would be an older employee being terminated because the company wants a younger-looking workforce, despite the older employee’s satisfactory job performance.

Disability Bias

1. Disability Bias: Discriminating against an employee due to a physical or mental disability also constitutes bias. For example, terminating an employee because they requested reasonable accommodations for their disability can be considered disability bias.

Sexual Orientation Bias

1. Sexual Orientation Bias: This happens when an employee faces discrimination due to their sexual orientation. For instance, if an employer terminates an employee upon discovering their same-sex partner, it could be deemed as sexual orientation bias.

Religious Bias

1. Religious Bias: This includes unfair treatment due to an employee’s religious beliefs or practices. For example, if an employee is fired for taking time off for a religious holiday when other employees are granted leave for secular activities, this could indicate religious bias.

Bias

It’s important to note that for a wrongful termination claim to be successful, the employee must demonstrate that the bias was a substantial motivating factor in the termination decision. Additionally, California law requires employers to take reasonable steps to prevent and correct wrongful behavior in the workplace. Failure to do so can lead to legal liabilities.

Continuing Violation- Failure to Timely File Administrative Complaint- Wrongful Termination Additional Info 5

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)

Damages- Wrongful Termination Additional Info 5

Understanding Damages in Wrongful Termination

Damages – 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.

__________________________

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

Damages- Wrongful Termination Additional Info 5

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.

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

Damages-2406. Breach of Employment Contract—Unspecified Term—Damages Wrongful Termination Additional Info 5

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)