Cal-Peculiarities: How California Employment Law is Different 2022 Edition

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 107 based on her allegations to the police, a nurse, and an HR manager. When the plaintiff then filed an anti-SLAPP motion, the trial court dismissed the cross-complaint and required the co-worker to pay the plaintiff’s attorney fees. The Court of Appeal affirmed, because the anti-SLAPP statute protected the plaintiff’s allegations in that they were made in connection with matters under review by an official proceeding or body, and because the co- worker could not demonstrate a likelihood that he would prevail on the merits of his defamation and IIED claim s. 244 5.7.9 Restricting peremptory juror challenges Trial lawyers often use their judgment to exercise a peremptory challenge to excuse a prospective juror who seems unfair or incompetent, even though the lawyer cannot prove that the prospective juror is actually unqualified to serve on the jury. The lawyer need not state the basis for the challenge, unless the other side objects. The peremptory challenge then stands so long as the lawyer was not discriminating on the basis of the prospective juror’s membership in some protected group. California will be making peremptory jury challenges much more difficult, if not impossible, by creating very heavy presumptions of unlawfulness with respect to some common reasons for exercising a peremptory strike. Legislation passed in 2020 will, effective in 2026, hinder civil trial lawyers who rely on various potential indicia of a prospective juror’s bias, including the prospective juror’s (1) expressing a distrust of or having a negative experience with law enforcement or the criminal legal system, (2) expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner, (3) having a close relationship with people who have been stopped, arrested, or convicted of a crime, (4) neighborhood of residence, (5) having a child outside of marriage, (6) receiving state benefits, (7) not being a native English speaker, (8) ability to speak another language, (9) dress, attire, or personal appearance, (10) employment in a field disproportionately occupied by members of a race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or that a serves a population disproportionately composed of members of such a group, (11) unemployment or underemployment, or unemployment or underemployment of the prospective juror’s family member, (12) apparent friendliness with another prospective juror of the same race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation. The law will presume that these reasons for excluding jurors are improper proxies for unlawful discrimination unless the party exercising the peremptory challenge can show by “clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups. ” 245 To make peremptory jury strikes even harder, the new law proclaims that certain reasons for peremptory challenges “have historically been associated with improper discrimination,” such as the prospective juror (a) being inattentive, or staring or failing to make eye contact, (b) exhibiting either a lack of rapport or problematic attitude, body language, or demeanor, and (c) providing unintelligent or confused answers. The new law will deem these reasons “presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or the observations of counsel for the objecting party. Even with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried. ” 246 5.8 Defamation Claims In 2020 the Court of Appeal reinstated a $6 million defamation award as not duplicative of a wrongful termination award, in that the damages awarded for the wrongful termination claim were for past and future lost earnings and did not include a component for reputation damages . 247