California Employment Law Notes
| Jurisdiction | California,United States |
| Author | Anthony J. Oncidi |
| Citation | Vol. 37 No. 5 |
| Publication year | 2023 |
AUTHOR*
Anthony J. Oncidi
Sharp v. S&S Activewear, LLC, 69 F.4th 974 (9th Cir. 2023)
Fed up with hearing "very offensive" songs such as Eminem's "Stan" and Too Short's "B***job Betty" on the job, Stephanie Sharp and several other employees, including one male, filed a hostile work environment claim against their employer under Title VII. Plaintiffs claimed they could not escape the music because it was "[b]lasted from commercial-strength speakers" mounted on forklifts and driven around the warehouse where they worked. They also claimed the music encouraged male employees to make sexually graphic gestures and remarks and to openly share pornographic videos in the workplace.
The district court dismissed the claim, relying upon what is sometimes referred to as the "equal opportunity harasser" defense, which some employers have argued should shield them from liability where there is evidence that employees outside the protected group have been subjected to the same or similarly objectionable behavior. In short, the trial court found that the claim failed as a matter of law because the music was offensive to both men and women.
However, the Ninth Circuit reversed, squarely rejecting the "equal opportunity harasser" defense and holding that harassment need not be directly targeted at a particular plaintiff to support a harassment claim. The court found that the repeated and prolonged exposure to music "saturated with sexually derogatory content" could constitute harassment "because of sex."
Hodges v. Cedars-Sinai Medical Center, 91 Cal. App. 5th 894 (2023)
Deanna Hodges, who worked for Cedars-Sinai as an administrative employee with no patient responsibilities, refused to get vaccinated for the flu, contrary to the medical center's policy that required all of its employees to get vaccinated in an effort to limit its transmission. The only exceptions were for a "valid medical or religious exemption." Hodges, who did have confirmed medical conditions—a history of cancer and general allergies—though they did not fall within one of the identified exemptions, refused to get vaccinated. Her physician—who admittedly had no expertise in advising whether a person "should or should not receive a flu vaccine for medical reasons"—completed a preprinted form to help her apply for an exemption from the vaccination policy.
Cedars' Exemption Review Panel denied Hodges' request for an exemption because it did not meet the established criteria of the Center for Disease Control and Prevention (CDC) for a medical exemption.
After being terminated, Hodges sued Cedars for disability discrimination, among other things. The trial court granted Cedars' summary judgment motion, and the court of appeal affirmed, holding that Hodges failed to establish a disability or the perception by Cedars of a disability. Moreover, Cedars presented a legitimate, nondiscriminatory reason for the termination that was not pretextual: The mandatory vaccination policy was a product of its concern about patient safety and the guidance from the CDC and was not related to any disability Hodges purported to have.
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People ex rel. Garcia-Brower v. Kolla's, Inc., 14 Cal. 5th 719 (2023)
The California Supreme Court has held that an employee who makes a whistleblower complaint to an employer may bring a retaliation claim under the whistleblower statute (CAL. LAB. CODE § 1102.5(b)), even if the subject of the complaint was already known to the employer.
The employee, A.C.R., who worked as a bartender, complained to her employer that she had not been paid wages owed...
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