Nelson Law Group
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February 2013 Archives

No damages for employees fired for both lawful and unlawful reasons

Further muddying the issue of "mixed motives" in employment discrimination, the California Supreme Court ruled that, when employees are fired for both lawful and unlawful reasons (i.e., with mixed motives), they can seek injunctions and recover attorneys' fees but not monetary damages for lost pay and emotional distress. In Harris v. City of Santa Monica, a city bus driver sued after she was fired shortly after telling her supervisor she was pregnant. The employee claimed she was fired because of her pregnancy, whereas the City claimed it was because of the employee's past performance problems. At trial, the employee won almost $180,000 in damages and $400,000 in attorneys' fees. On appeal, the Court first debated the showing employees need to make to establish discrimination claims: Did unlawful discrimination play some role in their firing (the best standard for employees)? Was it the "but for" reason for the firing (the best for employers)? Or was it a "substantial motivating factor" (something in between)? While the Court chose the middle ground standard, it nonetheless clarified that if employees only prove that discrimination was a substantial motivating factor in terminations, they cannot recover monetary damages. They can, however, still recover attorneys' fees and seek injunctions, since showing that unlawful discrimination substantially caused a firing should not be an "empty gesture."

Refusing to participate in workplace investigation justifies termination

In McGrory v. Applied Signal Technology, a California appellate court held that an employer was justified in firing an employee who refused to participate in an investigation of alleged workplace harassment. The long-time employee, who apparently had an excellent work history, was accused of harassing a co-worker on grounds of gender and sexual orientation. The employer then brought in an attorney to investigate the allegations, but the employee was standoffish and refused to answer her questions (and also gave misleading answers). The investigation ironically exonerated the employee of the harassment allegations but the employer fired him anyway for his refusal to be forthright with the investigator. The employee claimed he only refused to provide names of potential witnesses in order to protect their privacy, and that California law protects against retaliation for participation in workplace investigations. But the Court held that employees are only protected against retaliation from participating in formal investigations by the Department of Fair Employment and Housing (and/or the Equal Employment Opportunity Commission), not informal internal investigations. Regarding the employee's refusal to participate in the investigation, the Court said the refusal "does not shield an employee against termination or lesser discipline for either lying or withholding information during an employer's internal investigation..." Takeaway? Employees can be punished for being uncooperative or dishonest in internal workplace investigations.


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