Dec 06 2006
Taylor v. City of Los Angeles Department of Water and Power
In November, the Second District
issued an opinion in this case that outlines both California Law under the FEHA
and Federal Law under Title VII. The
case involved claims under the FEHA against an employer for retaliation and a supervisor
for failing to prevent discrimination. The
case is worth reviewing, because court applied both the state and federal
standards in its analysis of the plaintiff’s claims.
The Second District first applied
the materiality test for FEHA retaliation claims under the California Supreme
Court decision in Yanowitz. The court then applied the deterrence
test for retaliation claims under the United States Supreme Court decision in
Burlington
. The court held that the retaliation claims
against both the employer and the supervisor stated a cause of action
sufficient to overcome a demurrer under either standard.
However, in its analyses of the
different standards, the court did not state the practical differences between
the two standards. While the court noted
that it saw no difference between the legislative intent of the FEHA and Title
VII, it failed to discuss what practical differences, if any, exist between the
materiality and deterrence tests. It
thus seems that the differences in application of the two standards are
currently an open question.
In addition to its analysis of the
FEHA and Title VII, the court also held that employer notice of protected
activity, when considered with the timing of adverse employment actions in
relation to the protected activity, could be considered constructive knowledge
by the employer of the plaintiff’s protected activity.
Finally, the court interpreted
section 12940(k) of the FEHA in regards to supervisor liability, and held that
supervisors are “persons” under the statute, and may thus be found liable for failing
to prevent acts of discrimination and harassment. While the court noted that a
supervisor may not be held liable for employment discrimination under the FEHA,
a supervisor may be liable for failing to prevent discrimination. As part of its ruling on this issue, the
court also held that a failure to prevent retaliation against protected
activity, in this case opposition to discrimination, is the same as a failure
to prevent discrimination.
