Showing 3 posts in FEHA.

The 12 Days of California Labor & Employment Series – Day 12 "Expansion of Employer Liability under FEHA"

It is the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2019. In the spirit of the season, we have used the "12 days of the holidays" to blog about one California law a day and that law's impact on California employers. Without further ado, on the twelfth day of Christmas, my Labor and Employment attorney gave to me—twelve lords a leaping and SB 1300. We saved SB 1300 for the end because it is chock full of important changes for employers. More ›

Physician Partner may sue Physician’s Partnership for Retaliation Under FEHA

The California Court of Appeal recently determined that a physician partner could sue her partnership under the California Fair Employment and Housing Act (“FEHA”) for retaliation based upon that partner’s opposition to, and efforts to prevent, the sexual harassment of the partnership’s non-partner employees. The Court acknowledged that a partner cannot sue the partnership under the FEHA for alleged harassment or discrimination against the partner, or for retaliation for opposing harassment or discrimination against the partner. The Court further confirmed that a partner cannot sue her partnership for harassment, discrimination or retaliation under Title VII of the federal Civil Rights Act, however, the Court recognized that a partner is a "person" protected from retaliation under the FEHA for opposing alleged sexual harassment of the partnership's employees, because the anti-retaliation provision shields "any person" who opposes employment discrimination, even if there is no existing employment relationship with defendant. The Court noted that the circumstances before it were "unique" thus implying that such a retaliation claim will not be raised often. Nevertheless, the Court of Appeal's decision reflects a broadening of the FEHA prohibition against retaliation claims, which previously seemed to only apply to a relationship between employer and employee.

Another California Court Strikes down yet Another Arbitration Agreement

The employee sued his former employer alleging several claims under the California Fair Employment and Housing Act (“FEHA”). The employer filed a petition to compel arbitration based upon an agreement to submit employment-related claims to final binding arbitration as provided in  signed employment application, employment agreement and acknowledgment of receipt of the employee handbook. The trial court refused to compel arbitration because the arbitration agreement stated that the arbitration would occur pursuant to the applicable rules of the American Arbitration Association (“AAA”) in the state where employee was employed or was last employed. The trial court found that the employee was not provided with a copy of the controlling AAA rules, and was not advised how he could find or review them and provisions failed to identify which set of rules promulgated by AAA would apply. Significantly, the arbitration agreement further stated that the arbitrator shall be entitled to award reasonable attorney's fees and costs to the prevailing party. The Court of Appeal affirmed the trial court's refusal to compel arbitration holding the agreement did not pass the applicable test for unconscionability, because the AAA rules were not provided with the arbitration agreement and a prevailing party attorney's fees provision exposed the employee to a greater risk of being liable to the employer for attorney's fees than he would have been had he pursued his FEHA claims in court. Generally, FEHA claims only allow a prevailing employee to recover attorneys fees. Employers must be cognizant that only a well- drafted arbitration provision in an employment agreement be enforced in California. Arbitration provisions that are incomplete, appear to impair valuable employee rights and/or create a risk of loss to the employee are likely to fail.

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