Young v. UPS: SCOTUS Addresses Title VII Disparate Treatment Pregnancy Discrimination Action

In Young v. United Parcel Service, Inc., ___U.S. ___ (3/25/15), the plaintiff worked as a part-time driver for UPS. When she became pregnant, her doctor restricted her lifting activities, which were required for her position. UPS told Young that she could not work as a driver while under a lifting restriction and did not qualify for a temporary alternative work assignment.

Young sued under Title VII of the Civil Rights Act of 1964, which provides: "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 . . . ." 42 U. S. C. §2000e(k). The District Court granted summary judgment for UPS, finding that Young could not show intentional discrimination, nor could she make out a prima facie case under McDonnell Douglas, and in any case, UPS had a legitimate, nondiscriminatory reason for its actions. The Fourth Circuit Court of Appeals affirmed, and the US Supreme Court granted certiorari.

The Supreme Court reversed, holding that Young had created a triable dispute of material fact under McDonnell Douglas as to "whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s." Young created this triable issue by introducing evidence that UPS accommodated (1) drivers who had become disabled on the job, (2) those who had lost their Department of Transportation certifications, and (3) those who suffered from a disability covered by the Americans with Disabilities Act of 1990.

The Fourth Circuit did not consider the combined effects of these policies, nor did it consider the strength of UPS’ justifications for each when combined. That is, why, when the employer accommodated so many, could it not accommodate pregnant women as well?

The Court did not consider whether Young created a triable issue of fact as to whether UPS's reasons for its conduct were pretextual. 

Justice Breyer wrote the opinion, with Chief Justice Roberts and Justices Ginsburg, Sotomayor, and Kagan joining. Alito concurred in the judgment. Scalia, Kennedy, and Thomas dissented. The opinion is available here. 

Sanchez v. Swissport: Employer's Compliance With PDLL Does Not Invalidate Employee's Causes of Action Under Other Provisions of the FEHA

In Sanchez v. Swissport, Inc. (2/21/13) --- Cal.App.4th ---, the Court of Appeal has held that an employee who has exhausted all of her leave under the Pregnancy Disability Leave Law (PDLL) may nevertheless state a cause of action under other provisions of the Fair Employment and Housing Act (FEHA).

Sanchez sued her former employer, Swissport, alleging, inter alia, that it violated California law by terminating her because she could not return to work after taking just over 19 weeks in accrued vacation, CFRA leave, and PDLL leave. The trial court sustained Swissport's demurrer without leave, and the Court of Appeal reversed.

After reviewing the basics of the PDLL and the FEHA, the Court held that the PDLL's "remedies augment, rather than supplant, those set forth elsewhere in the FEHA." Slip op. at 8.

In short, we conclude the superior court erred in sustaining the demurrer on the ground that appellant had no actionable claim under the FEHA because respondent had provided her with 19 weeks of leave under the PDLL.

Slip op. at 12. 

The opinion is available here. 

Alamo v. Practice Management Info. Corp.: Supreme Court Grants Review and Holds Pending Harris v. City of Santa Monica

In Alamo v. Practice Management Information Corporation (9/24/12) (discussed here) the Court of Appeal held that the plaintiff in a pregnancy discrimination case need not prove "but for" causation, a "motivating factor" instruction was proper, and the "mixed motive" defense does not apply where the defendant denies that discrimination played any role in the alleged adverse employment action.

I guessed that the Supreme Court would grant review and hold pending its decision in Harris v. City of Santa Monica, and on January 23, it did just that.  Justice Baxter, who recused himself from Harris after his daughter was sued for pregnancy discrimination, did not take part in the decision, which otherwise was unanimous.  

Please remember that the State Bar of California, Labor and Employment Law Section will present a special "Watch List Webinar" on Harris within a week or two of the decision, which is due on March 4. Paul Cane, who argued as amicus for the defense, and David deRubertis, who argued for the plaintiff, have agreed to speak. Yours truly will moderate.

Stay tuned for more information.  

Justice Baxter Recuses Himself from Harris v. City of Santa Monica

According to an article at Law.com, California Supreme Court Justice Marvin Baxter has recused himself from Harris v. City of Santa Monica in the wake of a lawsuit filed against his daughter that could be affected by the Supreme Court ruling. 

Tuesday's order gave no reason for Baxter's recusal. But last week two San Francisco employment attorneys filed a pregnancy discrimination suit against [Baxter's daughter, Laura Baxter-Simons], an East Bay attorney, alleging she violated California's Fair Employment and Housing Act by terminating a pregnant housekeeper.  

If Baxter's recusal leaves the Court without a four-vote majority, the Court may have to appoint a pro tem justice and then re-hear oral argument, unless the parties waive it. I cannot guess whether that will be necessary. 

But based on my reading of the justices at oral argument, Harris is likely to be a close decision. Baxter asked only one question at oral argument. Assuming that he would have been a vote for the defense, his recusal will be a problem only if the vote would have been 4-3 for the defense, which would leave the Court now split evenly at 3-3. If the Court takes no action to appoint a pro tem in the next couple of weeks, that may indicate that the majority (or plurality) consists of a more broad coalition, or that the plaintiff already has four votes.  

The Court's opinion is due on March 4, 2013, unless the Court gives itself additional time, for example by ordering further briefing, as it did last year in Brinker v. Superior Court.  

Regardless, the State Bar of California will present a webinar on the result within a week or two of the decision. Both Paul Cane, who argued as amicus for the defense, and David deRubertis, who argued for the plaintiff, have agreed to speak. Stay tuned for more information.

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.

Harris v. City of Santa Monica Oral Argument

Law.com has a good review of yesterday's oral argument in Harris v. City of Santa Monica. For anyone who has not been following along, Harris raises the following issues: 

1. The employee's burden of proof in an action under the FEHA (e.g., that the discriminatory animus was "a motivating factor," a "substantial factor," or the "but for cause" of the alleged adverse employment action); 
2. Whether the defendant in such an action may raise a mixed-motive defense (i.e., that it had both discriminatory and non-discriminatory motives for the alleged adverse employment action or would have taken the same action in the absence of any discriminatory motive); and 
3. Whether such a mixed-motive (or same decision) defense is a complete defense or merely bars the plaintiff from obtaining certain remedies.  

Justice Liu was the most active questioner.  He and others seemed to be leaning toward holding that such a defense is available, that the plaintiff must prove that discriminatory animus was a "substantial factor" in causing the adverse employment action, and that when the defendant proves such a defense, the plaintiff will not be eligible for economic damages or reinstatement.  

The decision is due in 90 days, which is March 4, 2013.  Within a week or two of the decision coming down, the State bar of California Labor and Employment Law Section will present a webinar on the Court's decision.  Both Paul Cane, who argued as amicus for the defense,  and David deRubertis, who argued for the plaintiff, have agreed to speak.  Stay tuned for more information.  

Harris v. City of Santa Monica: Supreme Court Schedules Oral Argument in FEHA "Mixed-Motive" Case

The California Supreme Court today announced that it will hear oral argument in Harris v. Superior Court on Tuesday, December 4, 2012, at 2:00 p.m. in Los Angeles.  Harris presents the following issue: 

Does the "mixed-motive" defense apply to employment discrimination claims under the Fair Employment and Housing Act (Gov. Code, section 12900 et seq.)?

The Court's case summary is here.  

Los Angeles oral arguments are at the Ronald Reagan State Office Building, 300 South Spring Street, 3rd Floor, Los Angeles.  

Harris v. City of Santa Monica: Supreme Court to Rule on Mixed-Motive Defense

In Harris v. City of Santa Monica, the California Supreme Court will determine whether the mixed-motive defense applies to employment discrimination claims under the Fair Employment and Housing Act ("FEHA").  Cal. Gov. Code, § 12900 et seq.

The Court of Appeal in Harris (2010) 181 Cal.App.4th 1094 reversed and remanded a judgment on jury verdict in favor of a bus driver who alleged pregnancy discrimination. The Court held:

1. The trial court (Los Angeles Superior, Judge Soussan Bruguera) erred by refusing to give a "mixed-motive" jury instruction (BAJI No. 12.26) and instead giving a "motivating factor" instruction (CACI No. 2500); but 
2. The error did not entitle the city to judgment notwithstanding the verdict because there was substantial evidence to support the verdict for Harris. 

Harris is fully briefed, but the Court has not yet scheduled oral argument. The Court's case summary is here.  I have added Harris to my Supreme Court watch list.