Defending Employment Litigation

EMPLOYMENT LITIGATION UTAH UPDATE

Defending an Employment Lawsuit in Utah

By: Steven R. Bangerter, Bangerter Frazier Group, PC

Utah employers often face lawsuits alleging wrongful termination or discrimination in the workplace filed under one or more of the federal and state laws applicable to employees. Most claims are filed under the Utah Antidiscrimination Act, Utah Code § 34A-5-102, the Utah Employment Selection Procedures Act, Utah Code § 34-406-301, Title VII of the Federal Civil Rights Act (Title VII), the American’s with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Age Discrimination in Employment Act (ADEA), and the Pregnancy Discrimination Act (PDA)—among others. Utah employees also sue their employers for breach of an employment contract or under the public policy exception to the employment at-will doctrine.

Employment laws prohibit discrimination and harassment based upon race, gender, national origin, religion, age, pregnancy, child-birth, disability, sexual orientation, family and medical leave, and other protected categories. Most employment laws also prohibit retaliation against employees who engage in certain protected activity in asserting their rights as a member of a protected category. The remedies available for successful employees claiming wrongful termination, discrimination or retaliation are substantial and can include past and future income (“back pay” and “front pay”), benefits, reinstatement, emotional distress, attorney’s fees and punitive damages.

Bangerter Frazier Group understands that employment law is evolving, burdensome and expensive for employers. This update summarizes the prolific nature of employment claims, some of the issues presented in employment lawsuits and strategies to defend employment claims. It presents possible solutions for preventing employment litigation.

The Flood of Employment Law Claims Continues

Hundreds of thousands of employment related claims are filed each year in the United States in state and federal court and before federal and state administrative agencies. The Equal Employment Opportunity Commission (EEOC) alone reported 88,778 individual discrimination charges filed with the EEOC in 2014. See http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm. The highest percentage of claims filed in Utah are based upon retaliation, disability, national origin, gender and age discrimination.

Defending Employment Litigation

Employment lawsuits typically stem from an allegedly discriminatory or wrongful “adverse employment action” such as a refusal to hire, firing, denial of promotion, layoff, reduction in pay or benefits or other negative condition of employment. As a practical matter, employees sometimes sue employers when they simply perceive they were treated unfairly or without any basis at all.

It is unlawful for an employer to intentionally discriminate against an employee in the terms and conditions of employment or take an “adverse employment action” against an employee based upon a protected category such as race, gender or disability. The employee bears the burden of proof that an “adverse employment action” was based upon a protected category amounting to unlawful employment discrimination. Employees can prove discrimination based upon direct evidence, statistical evidence or circumstantial evidence of discrimination.

Circumstantial Evidence Cases

An overwhelming number of all employment discrimination lawsuits are filed based upon claims supported by circumstantial evidence alone. In these cases, courts invoke a “burden shifting” test first established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and expressly adopted by the California Supreme Court. Under this flexible method, a plaintiff must first establish a “prima facie case” by showing: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) her employer treated similarly-situated employees outside of the protected class more favorably or the adverse action occurred under circumstances giving rise to an inference of discrimination. See Selk v. Brigham Young Univ., 2015 U.S. Dist. LEXIS 3307 (D. Utah 2015); Ortega v. Ogden Clinic Prof’l Corp., 2014 U.S. Dist. LEXIS 170879 (D. Utah 2014).

If the employee establishes a “prima facie case”, the employer then must present a “legitimate, non-discriminatory reason” for the adverse action. At that point, the burden shifts back to the employee to prove the employer’s proffered reason is false and merely a pretext for discrimination. Ultimately, the key to many cases is whether the employee presents evidence that a discriminatory and/or retaliatory intent was the primary motivation for the employer’s action.

The most common way employees attempt to prevail is by proving they were treated less favorably than similarly situated employees outside of the protected category. For example, a female cashier is terminated for theft, but she presents evidence that a male cashier only received a warning and suspension for the same act.

Defenses and Best Practices

Some of the best practices to prevent or defend an employment lawsuit or discrimination claim are: (1) to have clear and documented non-discriminatory reasons for all adverse employment decisions, (2) treat all employees fairly and consistently under similar circumstances; and (3) establish neutral and objective criteria to avoid subjective employment decisions. Employers should also train Human Resources personnel, managers and all employees on employment laws and implement a strong equal opportunity policy that is embraced and enforced at all levels of the organization.

Some of the defenses that may be available to defend an employment discrimination claim include: (a) the “after-acquired evidence doctrine”; (b) the employee’s failure to comply with statutory prerequisites to bringing the claim; (c) the bona fide occupational qualification exception (BFOQ); (d) set-off and (e) proving the employer’s actions were taken solely for legitimate business reasons.

The doctrine of “after-acquired evidence” may shield an employer from certain remedies available to an employee or limit relief where, after a termination or other adverse employment action, the employer learns for the first time about employee wrongdoing that would have led to the same employment decision had the employer known of it at the time of discharge. See Perkins v. Silver Mt. Sports Club & Spa, LLC, 557 F.3d 1141, 1145 (10th Cir. Utah 2009); Zisumbo v. Ogden Reg’l Med. Ctr., 2013 U.S. Dist. LEXIS 167569 (D. Utah 2013).

A BFOQ is a legitimate qualification for a job not aimed at any particular class of people. See Unit Drilling Co. v. EEOC, 2014 U.S. Dist. LEXIS 84456 (D. Utah June 2014). The set-off defense may allow an employer to decrease or extinguish any potential monetary liability by the value of claims the employer may have against the employee or for monies earned by the employee following termination.

Bangerter Frazier Group

Bangerter Frazier Group represents companies sued for employment law matters including alleged discrimination. We strive to provide our clients current and effective strategies for preventing and defending workplace claims. To learn more about Bangerter Frazier Group and its attorneys please visit www.bfgfirm.com or call us at (435) 628-7004 to schedule your free consultation.
Steven R. Bangerter is the founding partner of Bangerter Frazier Group.
Mr. Bangerter has over 22 years of legal experience and has defended numerous employment law matters.

Employment Litigation

Defending an Employment Lawsuit in California

By: Steven R. Bangerter, Bangerter Frazier Group, PC

California employers continue to face a blitz of lawsuits alleging wrongful termination or discrimination in the workplace filed under one or more of the federal and state laws applicable to employees. Numerous employment claims are filed daily against employers under the California Fair Employment and Housing Act (FEHA), the California Unruh Civil Rights Act, Title VII of the Federal Civil Rights Act (Title VII), the American’s with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), the Age Discrimination in Employment Act (ADEA), and the Pregnancy Discrimination Act (PDA)—among others. California employees also sue their employers for breach of employment contract, violation of public policy and “whistleblower” claims pursuant to California Labor Code Section 1102.5.

Employment laws prohibit discrimination and harassment based upon race, gender, national origin, religion, age, pregnancy, disability, family and medical leave, sexual orientation and other protected categories. Most employment laws also prohibit retaliation against employees who engage in certain protected activity in asserting their rights as a member of a protected category. The remedies available for successful employees claiming wrongful termination, discrimination or retaliation are substantial and can include past and future income (“back pay” and “front pay”), benefits, reinstatement, emotional distress, attorney’s fees and punitive damages.

Bangerter Frazier Group understands that employment law is evolving, burdensome and expensive for employers. This update summarizes the prolific nature of employment claims, some of the issues presented in employment lawsuits and strategies to defend employment claims. It also presents possible solutions for preventing employment litigation.

The Flood of Employment Law Claims Continues

Hundreds of thousands of employment related claims are filed each year in the United States in state and federal court and before federal and state administrative agencies. The Equal Employment Opportunity Commission (EEOC) alone reported 88,778 individual discrimination charges filed with the EEOC in 2014. See http://eeoc.gov/eeoc/statistics/enforcement/charges.cfm. California received the third highest number of EEOC claims filed per state in 2014 behind Texas and Florida. The highest percentage of EEOC claims were based upon retaliation, race, gender, and disability.

In 2014, California employees filed 17,632 employment claims under the California Fair Employment and Housing Act (FEHA). See California Dept. of Fair Employment and Housing Report to Joint Legislative Budget Committee at page 8. An average of 90 employment discrimination lawsuits are filed in federal court in California monthly. See www.pacer.gov. Many more lawsuits are filed in California state courts–with approximately 200 employment cases filed monthly in Orange, Alameda, San Diego and San Mateo counties alone.

Defending Employment Litigation

Employment discrimination lawsuits typically stem from an allegedly discriminatory or wrongful “adverse employment action” such as a refusal to hire, firing, denial of promotion, layoff, reduction in pay or benefits or other negative condition of employment. As a practical matter, employees sometimes sue employers when they simply perceive they were treated unfairly or without any basis at all.

It is unlawful for an employer to intentionally discriminate against an employee in the terms and conditions of employment or take an “adverse employment action” against an employee based upon a protected category such as race, gender or disability. The employee bears the burden of proof that an “adverse employment action” was based upon a protected category amounting to unlawful employment discrimination. Employees can prove discrimination based upon direct evidence, statistical evidence or circumstantial evidence of discrimination.

Circumstantial Evidence Cases

An overwhelming number of all employment discrimination lawsuits are filed based upon claims supported by circumstantial evidence alone. In these cases, courts invoke a “burden shifting” test first established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and expressly adopted by the California Supreme Court. Under this flexible method, a plaintiff must first establish a “prima facie case” by showing: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) her employer treated similarly-situated employees outside of the protected class more favorably or the adverse action occurred under circumstances giving rise to an inference of discrimination. See Cervantes v. Stockton Unified Sch. Dist., 2015 U.S. Dist. LEXIS 71978 (E.D. Cal. June 3, 2015); Pinto v. Walt Disney Co., 2011 U.S. Dist. LEXIS 109232 (C.D. Cal. 2011).

If the employee establishes a “prima facie case”, the employer then must present a “legitimate, non-discriminatory reason” for the adverse action. At that point, the burden shifts back to the employee to prove the employer’s proffered reason is false and merely a pretext for discrimination. Ultimately, the key to many cases is whether the employee presents evidence that a discriminatory and/or retaliatory intent was the primary motivation for the employer’s action.

The most common way employees attempt to prevail is by proving they were treated less favorably than similarly situated employees outside of the protected category. For example, a female cashier is terminated for theft, but she presents evidence that a male cashier only received a warning and suspension for the same act.

Defenses and Best Practices

Some of the best practices to prevent or defend an employment discrimination claim are: (1) to have clear and documented non-discriminatory reasons for all adverse employment decisions, (2) treat all employees fairly and consistently under similar circumstances; and (3) establish neutral and objective criteria to avoid subjective employment decisions. Employers should also train Human Resources personnel, managers and all employees on employment laws and implement a strong equal opportunity policy that is embraced and enforced at all levels of the organization.

Some of the defenses that may be available to defend an employment discrimination claim include the: (a) “after-acquired evidence doctrine”; (b) employee’s failure to comply with statutory prerequisites to bringing the claim; (c) bona fide occupational qualification exception (BFOQ); (d) set-off and (e) the employer’s actions were taken solely for legitimate business reasons.

The doctrine of “after-acquired evidence” may shield an employer from certain remedies available to an employee or limit available relief where, after a termination or other adverse employment action, the employer learns for the first time about employee wrongdoing that would have led to the same employment decision had the employer known of it at the time of discharge. See Thompson v. Tracor Flight Systems, Inc., 86 Cal. App. 4th 1156, 1172-1173 (Cal. App. 5th Dist. 2001). A BFOQ is a legitimate qualification for a job not aimed at any particular class of people. The set-off defense may allow an employer to decrease or extinguish any potential monetary liability by the value of claims the employer may have against the employee or for monies earned by the employee following termination.

Bangerter Frazier Group

Bangerter Frazier Group represents companies sued for employment law matters including alleged discrimination. We strive to provide our clients current and effective strategies for preventing and defending workplace claims. Bangerter Frazier Group assesses each employment case for our clients independently and creatively based upon the particular facts present. To learn more about Bangerter Frazier Group and its attorneys please call us at (435) 628-7004 to schedule your free consultation.

Steven R. Bangerter is the founding partner of Bangerter Frazier Group. Mr. Bangerter has over 22 years of legal experience and has defended numerous employment law matters.