Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Lukas J. Clary | The Daily Recorder | Aug 22, 2013

This article is the first installment of a two-part article in which we summarize recent California Supreme Court decisions in employment law.

The California Supreme Court issued several employment law-related decisions during the past year, all of which may affect California employers.

Harris v. City of Santa Monica

In this case, the Court decided the effect of a “mixed-motive” defense under the Fair Employment and Housing Act (“FEHA”). When unlawful discrimination is a substantial motivating factor for termination of employment, but the employer proves it would have made the same decision regardless, a court may not order reinstatement, or award back pay or damages. The plaintiff’s remedy in “mixed-motive” cases is limited to declaratory or injunctive relief and possibly attorney’s fees.

Harris was a bus driver for the City of Santa Monica. The City fired her after a series of accidents and unexcused absences. Harris claimed she was fired due to her pregnancy, citing negative comments her supervisor made after she confided in him that she was pregnant. The City asked the court to instruct the jury it could not hold the City liable if the City proved it would have fired Harris regardless of her pregnancy, even if her pregnancy was also a motivating factor.

The trial court rejected the request and instead instructed the jury that Harris could prevail if she proved that her pregnancy was a motivating factor in her termination. The Court of Appeal reversed, holding that the trial court should have given the jury instruction that the City requested.

The Supreme Court reasoned that the FEHA prohibits acts that occur “because of” illegal discrimination. Attempting to give effect to the legislature’s intent to prohibit discriminatory practices, the Court adopted the above-referenced legal standard governing mixed-motive cases.

This case largely represents a victory for employers, albeit not a complete one. Employers may avoid damages and reinstatement in those cases where there is some evidence of a discriminatory motive, but also evidence of a legitimate reason that motivated its decision. Employees may obtain injunctive relief to prohibit discrimination as well as attorney’s fees when they prove a manager’s or supervisor’s decision at least in part was based on illegal discrimination.

The Legislature is considering SB 655 which, if enacted into law, would overturn or limit Harris. Stay tuned.

Ralphs Grocery Co. v. UFCW, Local 8

The Court decided in Ralphs Grocery Co. v. UFCW, Local 8 that labor picketing is allowed at shopping centers even though the Ralphs Grocery parking lot in a Sacramento-area center was not a public forum.

California’s labor and civil procedure laws make it difficult for employers to obtain injunctions against trespassing by union pickets. Unions’ pickets may be allowed even where non-labor picketing in the same place would likely be enjoined as a trespass. In Ralphs Grocery, the Supreme Court upheld the constitutionality of these laws. The Court overturned a Court of Appeal opinion holding that allowing unions to picket in front of store entrances and other private property amounted to an unconstitutional government preference for speech based on its content.

Pro-union picketers assembled in front of a Sacramento-area Ralphs shortly after it opened for business. They demonstrated to discourage shopping there because the employees had no union representation or collectively-bargained rights. The pickets did not impede customer access to the store (which would have resulted in an injunction even under California’s pro-union laws).

Ralphs asked the union to move from the store, citing its regulations prohibiting speech activities within twenty feet of the store entrance. After the union refused and the police department refused Ralphs request to remove them absent a court order, Ralph’s sought an injunction.

The Superior Court refused to enjoin the picketing because California’s Moscone Act essentially prevents courts from enjoining peaceful picketing and gathering. The Court of Appeal reversed. It held that the entrance to the store was not a public forum subject to general First Amendment free speech protection, and the Moscone Act amounted to unconstitutional, content-based, favoritism of one type of speech (labor picketing) over another (non-labor picketing).

The Supreme Court agreed with the Court of Appeal on the public forum-First Amendment issue. But the Court did not agree that the Moscone Act is unconstitutional. Distinguishing First Amendment decisions holding other laws unconstitutional, the Court reasoned that the Moscone Act does not restrict speech. Rather, the Court held, the Act only insulates certain union speech from legal action.

The case means business owners have little power to exclude union picketing unless the union engages in fairly egregious conduct, such as blocking customer access, inducing violence, or otherwise engaging in illegal activity.