The Best and Worst Employment Cases of 2015
| Publication year | 2016 |
| Author | By Andrew H. Friedman |
By Andrew H. Friedman
Andrew H. Friedman is a partner with Helmer Friedman LLP in Culver City, where he primarily represents employees in all areas of employment law. Mr. Friedman is the author of a leading employment law practice guide - Litigating Employment Discrimination Cases (James Publishing, 2007).
2015 continued a remarkable recent trend in which the California state and federal courts issued, on an almost daily basis, a deluge of employment decisions. Buried in this torrent of opinions are some cases - the "best" and the "worst" (depending on your perspective) - of which the employment practitioner must be aware. Before highlighting those cases, however, it is necessary to summarize several decisions from the U.S. and California Supreme Courts in 2015 that directly affect employers and employees.
In 2015, the Supreme Court issued a quintet of opinions impacting employment law.
Interestingly, the most important of these decisions occurred in a non-employment case - Obergefell v. Hodges.1 In a divided 5-4 decision authored by Justice Kennedy (and issued on June 26th - the second and twelfth anniversaries, respectively, of Justice Kennedy's decisions in United States v. Windsor2 and Lawrence v. Texas3), the Court held that the right to marry is a fundamental right that cannot be denied to same-sex couples. This case will have profound implications in many areas, including EEO employment (given that many state and local employment anti-discrimination laws define "marital status" as a protected class), family and medical leaves, and employee benefits such as health insurance and COBRA rights.
In EEOC v. Abercrombie & Fitch Stores, Inc.,4 the Supreme Court held that Title VII of the Civil Rights Act of 19645 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could otherwise accommodate without undue hardship, regardless of whether the applicant expressly informed the prospective employer of the need for such an accommodation. Under this decision, for example, if an employer decides not to hire an orthodox Jewish applicant because the employer believes (but is not certain) that the applicant may observe the Sabbath and thus be unavailable to work on Saturdays, the employer violates Title VII.
Mach Mining, LLC v. EEOC6 concerned whether and how the courts could review the conciliation efforts of the Equal Employment Opportunity Commission (EEOC) under Title VII. Resolving a split between the circuits, the Court held that, although the courts may review whether the EEOC satisfied its statutory obligation to conciliate in good faith before filing suit, the scope of review is quite narrow and a sworn affidavit from the EEOC in which it states that it has performed its obligations but that its efforts have failed will usually suffice. However, if the employer proffers credible evidence that the EEOC did not properly satisfy its conciliation obligation, a court must conduct a fact-finding hearing. Should the court find in favor of the employer, the court must stay the underlying action and order the EEOC to fulfill its conciliation obligation.
In Young v. UPS,7 the Supreme Court determined the meaning of the second clause of the Pregnancy Discrimination Act (PDA),8 which states:
women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.
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Peggy Young, a driver for UPS, argued that the company violated the second clause of the PDA by refusing to accommodate medical restrictions resulting from her pregnancy (she was precluded from lifting more than 20 pounds). Young alleged that UPS accommodated other drivers who were similar to her in their "inability to work." She therefore argued that UPS was required to accommodate her as well. UPS argued that the "other persons" who it accommodated were: (1) drivers who became disabled on the job; (2) drivers who lost their Department of Transportation certifications; and (3) those who suffered from a disability under the Americans with Disabilities Act of 1990.9 UPS claimed that because Young did not fall within any of those categories, it did not discriminate against her on the basis of pregnancy, but rather treated her as it treated all "other" relevant "persons." Justice Scalia sensibly and properly concluded that the second clause of the PDA could have two - and only two - possible interpretations: the one offered by Young and the one offered by UPS. In Scalia's view, UPS offered the more convincing interpretation. Justice Scalia, however, wrote the dissent. The majority, in an opinion authored by Justice Breyer, opted for a third interpretation. This prompted at least one observer to quote Wolfgang Ernst Pauli, the Nobel Prize-winning, Austrian-born Swiss theoretical physicist, who commented on a colleague's erroneous interpretation: "Das ist nicht nur nicht richtig, es ist nicht einmal falsch!" ("That is not only not right, it is not even wrong!") The majority's interpretation was so absurd that it induced a scathing dissent from Justice Scalia.10
Department of Homeland Sec. v. MacLean11 serves as an absolutely stunning reminder that, in this author's opinion, while the U.S. Supreme Court is generally hostile to employment claims, it has a soft spot in its otherwise hard heart for employment retaliation claims. Indeed, plaintiff employees have now prevailed in 10 of the last 11 retaliation cases decided by the Supreme Court since 2005. The Whistleblower Protection Act of 1989 (WPA) generally provides whistle-blower protections to federal employees who disclose information revealing "any violation of any law, rule, or regulation," or "a substantial and specific danger to public health or safe-ty."12 An exception exists, however, for disclosures that are "specifically prohibited by law." In Maclean, a federal air marshal who publicly disclosed that the Transportation Security Administration (TSA) decided to cut costs by removing air marshals from certain long-distance flights thought by the Department of Homeland Security to be at high risk for a terrorist attack, sued the TSA, claiming that he was fired for blowing the whistle on the TSA's decision. The TSA argued that Maclean could not seek whistleblower protection because regulations prohibited the unauthorized disclosure of "sensitive security information." The Supreme Court held that Maclean could proceed with his lawsuit because, although his disclosure violated TSA's regulations, it was not "specifically prohibited by law." In other words, the Court found that to lose the protections of the WPA, Maclean's disclosure must have been "prohibited by a statute rather than by a regulation."
In 2015, the California Supreme Court issued a trinity of employment cases - two of which were highly favorable to employees.
First, in Williams v. Chino Valley Indep. Fire Dist.,13 the Court held that the Fair Employment and Housing Act (FEHA)14 governs cost awards in FEHA actions (as opposed to Code of Civil Procedure section 1032), thereby allowing trial courts discretion to award both attorney fees and costs to prevailing employee-plaintiffs under FEHA, subject to the rule of Christiansburg.15 Consequently, an unsuccessful FEHA plaintiff should not be ordered to pay the defendant's fees or costs unless the plaintiff brought, or continued litigating, the action without an objective basis for believing it had potential merit.
Second, in Mendiola v. CPS Sec. Solutions, Inc.,16 the court decided whether the California wage order17covering security guards required their employer to pay them for two types of time spent at their assigned worksites: (1) on-call time, and (2) sleep time. Regarding on-call time, the employer argued that because the guards had the freedom to engage in personal activities - including sleeping, showering, eating, reading, watching television, and browsing the Internet - they were not under the employer's control and were therefore not entitled to compensation. As to sleep time, the employer argued that all industry-specific wage orders implicitly incorporated a federal regulation that permits the exclusion of eight hours of sleep time from employees' 24-hour shifts. Recognizing that an employer may hire an employee to do nothing or to wait to do something, the California Supreme Court rejected the employer's arguments when it held that guards were entitled to compensation for both on-call time and sleep time...
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