In the recent 9th Circuit (the federal court circuit that covers California and other western states), Westendorf vs. West Coast Contractors, 712 F3d 417 (9th Cir 2013), once again shows us that it may be easier to win on a claim of discrimination than on an underlying charge of illegal discrimination. Here, a motion for summary judgment (essentially throwing the case out of court and possibly subjecting the losing party to costs incurred by the other side) was granted by the trial court. The appeals court upheld the dismissal of sex harassment, agreeing with the trial court that the evidence did not show “severe or pervasive” misconduct. The five or six remarks put into evidence were definitely crude and offensive but not actionable in the sex harassment realm.
However, the appellate court did find that Ms. Westendorf did complain and may have been retaliated against for these complaints.
We only represent employees in California and routinely litigate dozens if not hundreds of cases a year with very similar facts. I have not yet read the full opinion on this one, but I am personally surprised that the court found the retaliation was based on something illegal and thus actionable. It may well be that the plaintiff (person bringing the claim) “reasonably but mistakenly” believed illegal harassment was occurring. This would be sufficient under Labor Code 1102.5 to state a claim and possibly illegal under the Government Code of California prohibiting retaliation. This case was apparently decided under Title VII of the Civil Rights Act of 1964 and it is not known if plaintiff’s counsel alleged 1102.5. We’ll try to find out how the court may have ruled on that.
I’ll supplement this blog when we’ve seen the full opinion and there may have been other grounds on which the retaliation charge was upheld. In the meantime, we counsel our clients to complain in writing, whatever the issue may be. Nothing like a written record to prove that the complaint was made. If you believe that the activity you are complaining about is illegal, consider notifying an attorney at the same time. This is generally private activity on your part, and your attorney-client privilege means no one–including your California employer–can question you about what you told your attorney. (Just make sure not to communicate on or through your employer’s e mail system or electronic network, as the privilege WILL be lost).
Danz & Associates practices employment law throughout California. We are proud of the work being done by our co counsels in advancing the causes of California workers. We are currently expanding our pro bono and legislative efforts in order to bring meaningful legislation to the workplace. Our main office is in Los Angeles, with many other offices including Santa Rosa, San Francisco, Sacramento, Fresno, Pasadena, Bakersfield (covered by Simi Valley office), San Bernardino, Orange County (Irvine) and San Diego (Carlsbad and Mission Viejo).