FEBRUARY 2007

JUDICIAL UPDATES

The California Court of Appeal Applies the Totality-of-the-Circumstances Approach in Evaluating Whether Employee Suffered Adverse Employment Action

The number of retaliation claims has increased significantly in recent years, and there appears to be no end in sight. In a recent case out of San Diego, the California Court of Appeal discussed and applied the standard for determining an “adverse employment action” as set forth by the California Supreme Court in 2005 in Yanowitz v. L’Oreal USA, Inc. In this case, plaintiff Scott Jones sued his former employer, The Lodge at Torrey Pines Partnership (“the Lodge”) for sexual orientation discrimination under the FEHA. Jones also sued the Lodge and his supervisor for retaliation. Jones is a homosexual who was open about his sexual orientation. He provided evidence that he was the recipient of continuous jokes and sexual remarks that were “gay-bashing” in nature, and otherwise highly offensive and degrading to Jones. Jones eventually complained about the hostile environment created by his supervisor and the kitchen manager. Jones also provided evidence in support of his retaliation claim:

• When Jones sent his supervisor a memo asking him to refrain from making unprofessional remarks, the supervisor responded with a tirade and physically intimidated Jones by crumpling up the memo and throwing it at him.
  
  
• After Jones met with the HR director to complain about sexual orientation discrimination and harassment, he received the first of a series of employee warning notices from the supervisor, concerning his absence of work the previous day as a result of being too emotional to work following his discussion of the harassment he had endured at the Lodge.
  
  
• Over a week later, the supervisor and the HR director presented the supervisor’s extensive memorandum charging Jones with deficient work performance in a number of areas. Jones viewed the memorandum as a 30-day notice for poor work performance and considered the charges to be false.
  
• The supervisor stopped talking to Jones and began to exclude him from weekly Lodge management meetings.
  
  
• The supervisor and the kitchen manager continued to use offensive language in the workplace in Jones’s presence.
  
  
• While on disability leave, Jones made it clear to the HR director that he wanted to return to his regular job at the Lodge and would not accept another position which was a demotion. Upon expiration of the disability leave, the HR director places Jones on paid administrative leave until the issue of where he would return to work was resolved. Jones was told that he could return to the Lodge, but he was still on his 30-day probation, and his sudden disability leave had “burned a bridge” with management.
  
• After returning to work, Jones continued to be excluded from meetings. He was warned by a co-worker to watch his back.
  
  
• After Jones filed a complaint with the DFEH, he was excluded from an important coordination meeting for employees regarding the upcoming Buick Invitational Golf tournament, a meeting that he had previously been included in past years. Jones also received four employee warning notices from the supervisor for what was reasonably characterized as little mistakes and other things that other employees would not get written up for.

In evaluating whether all of these actions taken together could form an adverse employment action that supported Jones’s retaliation claim, the Court of Appeal reviewed controlling case law, including the Yanowitz decision. In that case, the California Supreme Court noted that the determination of what type of adverse treatment should be considered retaliation (which is a form of discrimination in the terms, conditions or privileges of employment) is not susceptible to a mathematically precise test, and that the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of the employer and the employee. Adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the anti-retaliation provisions of FEHA. The Supreme Court also stated “Actions that threaten to derail an employee’s career are objectively adverse.” Utilizing this totality-of-the-circumstances approach, the Court of Appeal held that a jury could reasonably conclude that Jones suffered adverse treatment in the form of a series of damaging injuries that would be reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. (Jones v. The Lodge at Torrey Pines Partnership, California Court of Appeal Case No. D046600, February 5, 2007.)

This case, like the handful of retaliation decisions that we have seen from California and federal courts over the past year or so, underscores the importance of training managers on how to supervise or otherwise interact with employees who have made complaints of discrimination and harassment so as to avoid the appearance of retaliation. It seems to be easier and easier to establish that an adverse employment action has taken place. Employers must be vigilant about the potential for claims of retaliation by an employee who has complained about discrimination, harassment or illegal practices.

If you would like to discuss these or any other employment law matters, please do not hesitate to contact any member of Klinedinst's Employment Law Department.