In November, the Second District issued an opinion in this case that outlines both California Law under the FEHA and Federal Law under Title VII. The case involved claims under the FEHA against an employer for retaliation and a supervisor for failing to prevent discrimination. The case is worth reviewing, because court applied both the state and federal standards in its analysis of the plaintiff’s claims.
The Second District first applied
the materiality test for FEHA retaliation claims under the California Supreme
Court decision in Yanowitz. The court then applied the deterrence
test for retaliation claims under the United States Supreme Court decision in
. The court held that the retaliation claims against both the employer and the supervisor stated a cause of action sufficient to overcome a demurrer under either standard.
However, in its analyses of the different standards, the court did not state the practical differences between the two standards. While the court noted that it saw no difference between the legislative intent of the FEHA and Title VII, it failed to discuss what practical differences, if any, exist between the materiality and deterrence tests. It thus seems that the differences in application of the two standards are currently an open question.
In addition to its analysis of the FEHA and Title VII, the court also held that employer notice of protected activity, when considered with the timing of adverse employment actions in relation to the protected activity, could be considered constructive knowledge by the employer of the plaintiff’s protected activity.
Finally, the court interpreted section 12940(k) of the FEHA in regards to supervisor liability, and held that supervisors are “persons” under the statute, and may thus be found liable for failing to prevent acts of discrimination and harassment. While the court noted that a supervisor may not be held liable for employment discrimination under the FEHA, a supervisor may be liable for failing to prevent discrimination. As part of its ruling on this issue, the court also held that a failure to prevent retaliation against protected activity, in this case opposition to discrimination, is the same as a failure to prevent discrimination.