E-Blasts

On Monday, the United States Supreme Court (“SCOTUS”) made it more difficult for employers to dismiss federal discrimination lawsuits, ruling that if an employer does not timely raise the affirmative defense that an employee failed to properly file a charge, the employer waives that defense and the discrimination lawsuit can proceed in federal court.

On Wednesday, a federal jury cleared Chipotle Mexican Grill (“Chipotle”) of any wrongdoing against an assistant manager who claimed she was fired as a result of taking time off after a miscarriage to seek mental health treatment.

The suit was filed on June 29, 2017 in federal court in California’s Central District by Lucia Cortez (“Cortez”) who, at the time, was an assistant store manager and had worked for the Chipotle for eight years. In 2016, Cortez suffered a miscarriage at work after years of trying to get pregnant. As a result, she fell into a deep depression and needed to seek mental health treatment. Cortez requested time off to recover under the Family Medical Leave Act (“FMLA”) and her manager gave her 12 weeks off of unpaid and job-protected leave as required under the FMLA. After 12 weeks, Cortez asked for an additional month off to sort out final doctor’s appointments. Cortez’s manager “only” allowed her to take a week off as a courtesy since she had exhausted her 12 weeks of FMLA.  However, Cortez went behind her manager’s back and elected to call Chipotle’s benefits center to extend her leave another month without any notification to her manager. Chipotle’s benefit center granted her request for the additional month of leave but her manager had not provided his approval.

On June 13, 2018, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it filed seven lawsuits nationwide, charging employers with verbal and/or sexual harassment, including two suits against employers in Southern California.

Yesterday, April 9th, 2018, the Ninth Circuit ruled in the Rizo v. Yovino (“Rizo”) case that employers may not justify wage gaps between men and women by relying on the employee’s salary history alone under the federal Equal Pay Act (“EPA”). The EPA prohibits employees from being paid differently for similar work, except where the difference in pay is because of seniority, merit, the quantity or quality of the employee’s work, or “any other factor other than sex.”

The California Office of Administrative law recently approved amendments to the California Fair Employment and Housing Act that, in part, clarify several different aspects of “national origin” as the term is used regarding prohibited discrimination in employment. Once formally enacted on July 1, 2018, the definition of “national origin” will be expanded from the individual’s or ancestors’ actual or perceived “place of birth or geographic origin, national origin or ethnicity” to also include the following:

In February, former talk show host Tavis Smiley (“Smiley”) filed a Complaint against PBS, asserting that sexual misconduct allegations against him were untrue and were used as an excuse to terminate his employment. On March 20, 2018, PBS responded by filing an Answer to Smiley’s suit. Answers are defendants’ responses to complaints containing defendants’ version of events and can, as in this case, contain defenses offered in response to the plaintiff’s claims as well as counterclaims suing the plaintiff. PBS’ counterclaims include details from the harassment investigation, and it’s also seeking $1.9 million in unused funds from producing his show.

According to PBS’ Answer to Smiley’s suit, after renewing the Tavis Smiley Show in November of 2017, PBS received a complaint from a former subordinate of Smiley asserting that Smiley had repeatedly engaged in sexual misconduct. Subsequently, PBS brought in an outside law firm to conduct an investigation into the complaint.

Through the course of the investigation, several others who had worked with Smiley made similar claims of inappropriate behavior and sexual misconduct; the Answer specifically refers to patterns of “having sexual encounters with subordinates,” “making unwanted sexual advances toward subordinates, including requests for specific sexual acts,” “making inappropriate sexual jokes or lewd comments, including about subordinates’ body parts,” and “creating a verbally abusive and threatening work environment, including that he aggressively cursed at and belittled subordinates.”

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