Retaliation

The California Supreme Court granted review on August 19, 2015, stating the issues as follows:

Where a plaintiff introduces direct evidence of a discriminatory motive, the McDonnell Douglas burden-shifting analysis does not apply on summary judgment. Although France introduced “some direct evidence and some circumstantial evidence” of discriminatory intent, the Court found it “most appropriate” to use McDonnell Douglas. 

In a failure-to-promote case, a plaintiff may establish a prima facie case of discrimination in violation of the ADEA by producing evidence that he or she was (1) at least forty years old, (2) qualified for the position for which an application was submitted, (3) denied the position, and (4) the promotion was given to a substantially younger person.

To determine whether the person promoted is “substantially younger” than the plaintiff, an age difference of ten or more years is presumed substantial, and an age difference of less than ten years is presumed insubstantial. A plaintiff can rebut the presumption by showing that the employer considered his or her age to be “significant.” Evidence, inter alia, that one of the decisionmakers expressed a preference for younger employees was sufficient to rebut the presumption. France established a prima facie case of discrimination.

DHS established legitimate business reasons for rejecting France, so the Court turned to the final element of the test: the plaintiff’s obligation to raise a genuine dispute of material fact as to pretext.

Because “the ultimate question is one that can only be resolved through a searching inquiry—one that is most appropriately conducted by a factfinder, upon a full record,” “it should not take much for a plaintiff in a discrimination case to overcome a summary judgment motion.” France raised genuine issues sufficient to defeat summary judgment by introducing evidence that one of the decisionmakers – even if not the chief decisionmaker – made discriminatory statements and repeatedly raised the issue of retirement with him.

On July 13, with two days to spare, Governor Brown signed legislation to clarify the law. Cal. Labor Code sections 245.5, 246, and 247.5.

In the underlying decision, Sanchez v. Valencia Holding Company, LLC (11/23/11) 200 Cal.App.4th 11 (discussed here), the Court of Appeal found the arbitration provision unenforceable as procedurally and substantively unconscionable. The Court held that AT&T Mobility LLC v. Concepcion, 563 U. S. __, 131 S.Ct. 1740 (2011), did not apply because the question was not “the enforceability of a class action waiver or a judicially imposed procedure that is inconsistent with the arbitration provision and the purposes of the Federal Arbitration Act (FAA).”

The Interpretation’s stated goal is to provide “guidance regarding the application of the standards for determining who is an employee under the Fair Labor Standards Act [FLSA] … to the regulated community in classifying workers and ultimately in curtailing misclassification.”

In order to make the determination whether a worker is an employee or an independent contractor under the FLSA, courts use the multi-factorial “economic realities” test, which focuses on whether the worker is economically dependent on the employer or in business for him or herself. A worker who is economically dependent on an employer is suffered or permitted to work by the employer. Thus, applying the economic realities test in view of the expansive definition of “employ” under the Act, most workers are employees under the FLSA. The application of the economic realities factors must be consistent with the broad “suffer or permit to work” standard of the FLSA.

The Interpretation discusses each of the factors in the multi-factor test, which it lists as follows:

A. Is the work an integral part of the employer’s business?

B. Does the worker’s managerial skill affect the worker’s opportunity for profit or loss?

C. How does the worker’s relative investment compare to the employer’s investment?

D. Does the work performed require special skill and initiative?

E. Is the relationship between the worker and the employer permanent or indefinite?

F. What is the nature and degree of the employer’s control?

This is the fifth Administrator’s Interpretation since the Obama Administration began issuing them in 2010. Prior to 2010, the DOL had issued opinion letters in response to specific questions from the public. The WHD’s web page for Administrator’s Interpretations is here.

While Title VII prohibits employment practices that discriminate on the basis of sex, a facially discriminatory employment practice is allowed if sex is a bona fide occupational qualification (BFOQ) for the position.