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

180 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com California also favors complainants when it comes to late administrative filings. Federal law excuses a late administrative filing only under special circumstances, such as where the employer has misled an employee or has concealed facts that the employee needed in order to assert the employee’s rights; there is no tolling of the filing deadline simply because the employee has pursued an internal grievance . 286 In California it’s different. The California Supreme Court has held that the deadline for filing an administrative complaint of discrimination under FEHA is tolled while the claimant voluntarily pursues an internal administrative remedy with the employer . 287 To tilt the playing field even further to the complainant’s advantage, DFEH regulations provide that “where there is doubt about whether the statute of limitations has run,” the complaint will be accepted and timeliness “investigated and analyzed” during the investigatio n. 288 As a result, it is in the discretion of the DFEH investigator to determine timeliness. A 2020 Court of Appeal decision did put a few teeth in the exhaustion requirement, however, when it held that a plaintiff challenging his employment termination as age discrimination could not rely on a newly amended DFEH administrative complaint to add class and disparate impact allegations. The Court of Appeal upheld the trial court’s denial of request for leave to amend the judicial complaint. The plaintiff, in amending his DFEH complaint more than three years after the DFEH had permanently closed his case, could not rely on the relation-back doctrine, in that the original DFEH complaint could not “bear the weight” of the newly asserted class and impact theories. The original DFEH complaint failed to allege that the employer had discriminated against anyone other than the plaintiff because of age, and did not even suggest that the employer had a policy that fell more harshly on older employee s. 289 6.15 Use of the Unfair Competition Law to Sue for Discrimination In America generally, laws designed to prevent unfair competition and antitrust violations do not enable employees to sue employers for employment discrimination. In California it’s different. The Court of Appeal has held that the Unfair Competition Law (which has a four-year statute of limitations) enables employees to sue employers for age discrimination, the reasoning being that an employer who engages in that discriminatory practice has obtained an unfair competitive advantage over other employer s. 290 Employees who sue under this statute, though, typically are limited in remedy to injunctive relief . 291 6.16 Disregard of Federal Evidentiary Doctrines 6.16.1 Rejection of the “stray remarks” rule In America generally, courts rule as a matter of law (either on summary judgment or in a motion for judgment as a matter of law) against discrimination plaintiffs who rely on “stray remarks”—remarks made remote in time or otherwise disconnected from the challenged employment decision, remarks not made by anyone who made or influenced the decision, or remarks not directed to the plaintif f. 292 In California it’s different. The Court of Appeal, in reversing a summary judgment for the employer in an age discrimination case, broadly repudiated the “so-called ‘stray remarks’ rule.” The Court of Appeal reasoned that the “stray remarks” rule would impermissibly permit trial judges to weigh evidence in ruling on motions for summary judgment . 293 The Court of Appeal concluded that the plaintiff should have been able to thwart summary judgment with his assertions that co-workers (who had no apparent connection with the challenged employment decision) had called him “slow,” “fuzzy,” “sluggish,” and “lethargic.” In 2010, the California Supreme Court affirmed this reasoning . 294