Veronese v. Lucasfilm: Court of Appeal Reverses Pregnancy Discrimination Verdict

Veronese v. Lucasfilm (12/10/12) --- Cal.App.4th ---, arises from a plaintiff's verdict in a pregnancy discrimination action. I will not go through the facts in any detail, but the Court focused on the following: the interactions between the parties were brief and took place largely through email, the plaintiff did not work for the defendant (other than shadowing another employee for several hours), and the jury awarded some $93,000 in past economic damages, $20,000 in non-economic damages, and more than $1.1 million in attorney fees and costs.

The First District Court of Appeal reversed, finding a number of instructional errors: 

• Failing to instruct the jury that it could not find discrimination "based upon a belief that Lucasfilm made a wrong or unfair decision" or "an error in business judgment." Slip op. at 20-25. The Court noted: "Numerous California cases contain language similar to" the proposed instruction, and several federal and out-of-state decisions have found error in the failure to give a business judgment instruction. The Court concluded that the defendant "was entitled to exercise [its] business judgment, without second guessing," and the failure to so instruct was error. Slip op. at 25. 
• Giving an instruction that read, “A potential hazard to a fetus or an unborn child is not a defense to pregnancy discrimination.” Slip op. at 25-30. Distinguishing Automobile Workers v. Johnson Controls, Inc. (1991) 499 U.S. 187, the Court held that the defendant had no policy to exclude women from any position, and it "did not contend—nor could it—that any concern for a fetus was a 'defense to discrimination.' So, even if the instruction were literally true, abstractly correct, it was not proper." Slip op. at 26-27. 
• Failing to give the jury any instruction on the plaintiff's claim for failure to prevent discrimination. Slip op. at 30-31. 
• Failing to instruct the jury on the difference between the plaintiff's termination claim and her failure to hire/failure to promote claim. Slip op. at 30-31. 

The Court held that these errors prejudiced the defendant, requiring reversal. Slip op. at 32-35.

The Court considered, but did not decide, whether the trial court erred in giving CACI 2500, which requires the plaintiff to show that discrimination or retaliation were "a motivating reason" for the failure to hire the plaintiff. Slip op. at 19-20. Noting that Harris v. City of Santa Monica is pending in the State Supreme Court, the Court of Appeal declined to rule on this issue. 

I'm not great at handicapping these things, but the fact that Harris is due in the next 90 days leads me to believe that the California Supreme Court may issue a grant-and-hold order in this case.

The opinion is available here.