FAIR EMPLOYMENT AND SEXUAL HARASSMENT

Age Discrimination Amicus Withdrawn. In January of 1999, Attorney General Lockyer withdrew amicus brief support previously given by his predecessor in Codger v. Board of Regents of the State of Tennessee (on petition for writ of certiorari), a case in which amici states had argued that the Eleventh Amendment bars Age Discrimination in Employment Act cases brought against a state.

Employment Discrimination and Mandatory Arbitration. Attorney General Lockyer in September 1999 filed an amicus brief in Armendariz v. Foundation Health Psychare Services, a case before the California Supreme Court involving mandatory arbitration of employment discrimination claims. The Attorney General urged the state high court to hold mandatory arbitration agreements unenforceable under the California Fair Employment and Housing Act and contrary to public policy. The "friend of the court" brief argued that upholding such agreements will prevent employees from pursuing their court and administrative remedies under FEHA, thus undermining public enforcement of this important anti-discrimination statute. In August 2000, the California Supreme Court ruled that while not violating public policy such agreements must meet strict requirements to be enforceable.

Seeking to Protect State Employment Discrimination Claims. In September 2000, the Attorney General filed an amicus brief joined by 20 states in Circuit City v. Adams in the U.S. Supreme Court regarding employment discrimination claims. The "friend of the court" brief urged the high court to uphold a Ninth Circuit Court of Appeals finding that the Federal Arbitration Act does not apply to contracts of employment and, therefore, a state employment discrimination claim could not be subjected to arbitration under the federal law. California was joined in the brief by Arizona, Arkansas, Colorado, Connecticut, Idaho, Illinois, Iowa, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nevada, New Jersey, New York, North Dakota, Pennsylvania, Vermont, Washington, and West Virginia. In a narrow majority ruling in March 2001, the U.S. Supreme Court held that the Federal Arbitration Act applies to contracts of employment.

Protecting Against Workplace Harassment. On July 2, 1999, Attorney General Lockyer filed an amicus brief in the California Supreme Court in support of the plaintiff in Carrisales v. Department of Corrections. The Court of Appeal held that a non-supervisory coworker who sexually harasses another coworker cannot be held personally liable for such harassment under the Fair Employment Housing Act. The "friend of the court" brief argued that FEHA does impose personal liability on a coworker who harasses another coworker even though the harasser is not a supervisory employee. While the state high court upheld the Court of Appeal ruling, the Legislature enacted new law to overturn the decision and make clear that harassment by non-supervisory co-workers is actionable.

FEHA Protections Against Workplace Harassment. The California Supreme Court has agreed to hear the appeal of a 2-1 appellate court decision in Salazar v. Diversified Paratransit that the Fair Employment and Housing Act under does not cover employer liability for harassment of an employee by a client or customer. The Attorney General in April 2002 filed a "friend of the court" brief in the state Court of Appeal arguing with the plaintiff that, under certain circumstances, an employer may be held liable under FEHA for harassment of an employee by a client or customer.

EEOC Enforcement Authority. In May 2001, Attorney General Lockyer joined in an amicus brief urging the U.S. Supreme Court to find that the Equal Employment Opportunity Commission is not barred from bringing victim-specific monetary remedies such as back pay and damages if the victim already has agreed to arbitrate a discrimination claim. The "friend of the court" brief in Equal Opportunity Employment Commission v. Waffle House, Inc. was authored by the Attorney General of Missouri. In January 2002, the Supreme Court held that private agreements to arbitrate employment discrimination claims do not bar the EEOC from seeking such victim-specific remedies.

Disability Standards. Attorney General Lockyer in March 2002 filed a "friend of the court" brief with the state Supreme Court in Colmenares v. Braemar Country Club, arguing with the plaintiff that the definition of "physical disability" in the newly enacted Prudence Poppink Act merely codifies the existing definition under the state Fair Employment and Housing Act. At issue is whether the definition in the new law that took effect in January 2001 should be applied only prospectively. The law defines "physical disability" to limit a major life activity but does not require the "substantial limitation" standard imposed by the federal Americans With Disabilities Act. The court issued a decision adopting the position advanced by Attorney General Lockyer.