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Labor and Employment Law Updates: March 2013

March 2013 Employment Law Updates

California State Law Update

State Courts Review Pregnancy Discrimination in Employment

This month showcases some fantastic cases for legal commentators interested in the expanding laws protecting women from workplace pregnancy discrimination.  In Harris v. Santa Monica, a February 7, 2013 California Supreme Court decision, our state high court considers whether the Fair Employment and Housing Act (“FEHA”) requires fact-finders to consider an employer’s ‘mixed motive’ versus ‘substantially motivated’ decision to terminate an employee who believes she has been discriminated due to pregnancy.  In Harris, a bus driver (Wynonna Harris) with her two ‘preventable’ accidents, two ‘miss outs’, and an otherwise not so glowing performance review during her probationary period was ultimately terminated only a short time after her manager discovered she was pregnant.  As is often the case in these published matters, the timing for this termination was undoubtedly bad.  The issue in Harris, however, was not a question of whether the employee’s work performance was truly poor, or even whether the employer possessed actual knowledge of the employee’s pregnancy, but how jurors were instructed to find an award in Harris’ favor.

The trial judge essentially rejected instructions which asked jurors to find only for Harris if facts established ‘because of’ her pregnancy [mixed motive] Harris would not have been terminated.  Instead, jurors were asked to find for Harris if facts established ‘but for’ her pregnancy, she would not have been terminated.  In other words, if the employers were substantially motivated to terminate Harris based on their knowledge that she would be pregnant, then the jurors should find for her and against the City.  The difference between the two standards, is technical, but boils down to what evidence can be presented to present the employer’s legitimate reasons for terminating the employee and whether those reasons outweigh any possible explanation that the employer was simply practicing prejudice against pregnant women.


Well, jurors returned a verdict of approximately $150,000 for Harris and some $400,000 plus in attorney’s fees.  The City appealed.  And upon State Supreme Court review, the Harris court found that the trial court was not justified in rejecting the ‘mixed motive’ jury instructions.  The trial court had the discretion and should have considered the facts in a light that warranted the weighing of employer’s explanation for terminating the employee so that jurors could deliver justice and award damages if Harris was truly the victim of pregnancy discrimination. The high court explained in a carefully penned analysis that the goal of federal and state law is to ensure against pregnancy discrimination and the state legislature’s adoption of federal law and use of varying terms is not to be interpreted so narrowly as to prevent an employer’s right to explain what, if any, legitimate reasons exist for taking adverse actions against pregnant employees.  To read the full decision, click:

Also interesting is Sanchez v. Swissport, a February 21, 2013, Division Four Court of Appeals case.  In Sanchez, Division Four reviews a question of first impression which is whether an employee who exhausts all leave available under state law can still bring a case for failure to accommodate under the FEHA.  In Sanchez, an employee with a high risk pregnancy was medically authorized to not work until she delivered not much longer after the employee learned she was pregnant.  The employer permitted the employee four (4) months of leave, and then promptly terminated her after leave was exhausted citing that the employer’s policy was clearly stated and consistent with state law.

The employer attacked employee’s complaint based solely on the pleadings arguing that it was unnecessary to try the case as the plaintiff had no case since she received all remedies available by law and the employer had not violated what it was required to do under the greatest of circumstances.  The trial court agreed and granted the employer’s objection without permitting the employee leave to amend the complaint.  On appeal, however, the Court of Appeal concluded that Sanchez could have a case for wrongful termination under FEHA – thereby requiring employers to engage in the interactive process – and the case was remanded back to the Los Angeles Superior Court.

What to make of these cases from the employer’s perspective?  Employers must not hastily make adverse employment decisions.  Courts in California will apply a broad brush to laws to assure that an employee’s rights to fair and equal employment are assured.  This means that documenting poor performance, coaching, and involving employees in workplace decisions should be the order of the day always.  Read this decision in full.  Also, we are always happy to answer your workplace questions.  Never hesitate to call MMC’s Labor & Employment Law Department at (800) 899-MMCI (6624) with your workplace questions.  Let @MMChr keep you to date with labor and employment law news.