Labor & Employment Law Blog

In perhaps the first case to employ jury instructions based on the California Supreme Court’s recent holding in Harris v. City of Santa Monica that a plaintiff alleging discrimination in violation of the California Fair Employment and Housing Act (“FEHA”) must prove that discrimination was a “substantial factor” motiving the challenged action of the employer and not just a factor, in Rodriguez v. Valley Vista Services, Inc., a Los Angeles County Superior Court, Case Number BC 473793, jury awarded a plaintiff alleging discrimination in violation of the FEHA a record $21.7 Million.

The chief issue in the case was whether Valley Vista Services terminated April Rodriguez because she was absent from work for three days or because of a mental disability.  Among other things, the FEHA forbids an employer from discriminating against an employee or an applicant for employment because of a disability.  Rodriguez argued her alleged mental disability was a “substantial factor” motivating Valley Vista Services’ decision to terminate her employment after she was absent from work for three days.  Valley Vista argued it did not discriminate against Ms. Rodriguez on account of her alleged mental disability when it terminated Ms. Rodriguez for being absent from work for three days without calling.  The jury, applying the “substantial factor” standard announced by the California Supreme Court in Harris apparently found Ms. Rodriguez’ evidence more persuasive than Valley Vista’s evidence and awarded Ms. Rodriguez $21.7 Million in damages.

Whether the jury’s $21.7 Million verdict ultimately will stand remains to be seen, but that verdict is a sobering cautionary tale for employers nevertheless:

•  When an employee fails to report to work and fails to contact the employer, the employer should be alert to the possibility the employee might have a physical or mental disability that might have prevented the employee from complying with the employer’s attendance or reporting rules.  In such circumstances, many jurors would expect the employer to investigate the reason or reasons for the employee’s absence before imposing discipline.

•  Even though employment in California is generally at-will, meaning the employment can be terminated at any time without or without notice and with or without good cause, jurors sometimes will apply at least in their own minds a de facto “good cause standard.”  In other words, many jurors harbor the belief it is unfair for an employer to terminate an employee without “good cause” even though “good cause” is legally not required in most cases.  Employers should therefore carefully consider termination decisions when the decision is susceptible to being perceived as overly harsh relative to the employee’s conduct and therefore pretextual.

•  Jurors tend to identify with employees and not with employers in employment cases.  Nearly every juror is or was an employee, but very, very few have ever been an employer.   With increasing frequency, employers have been able to avoid a jury altogether by having in place an up-to-date arbitration agreement between the employer and each of its employees requiring that any disputes arising out the employee’s employment be resolved by arbitration and not by litigation in court.