Beverly Tillett Pine
navigating around favorite defense arguments How to get around the most common defense ruses
Defendants frequently raise the same
old arguments in employment cases. This article will expose some of the most com- mon ones and suggest ways in which plaintiffs may respond. It should prove to be a helpful reference tool for rebut- ting many of these well-worn arguments: • It’s not harassment; it’s a “creative work- place” • There is no “direct evidence” of discrim- inatory intent • The harassment claims disappear upon “dismemberment” • Plaintiff could not have been harmed by the complained-of conduct • This evidence is nothing more than “stray remarks” • There is no evidence of an adverse employment action • Plaintiff cannot prove pretext • The evidence does not show the deci- sion-maker harbored retaliatory animus • IIED and punitive damages are not available in wrongful termination cases • The conduct is not sufficiently “outra- geous” to support a claim for IIED • The non-economic damages award is excessive • The award for future economic dam- ages is excessive
It’s not harassment; it’s a “creative workplace” One of defense counsel’s favorite
cases is the so-called Friends case. (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 278 [42 Cal.Rptr.3d 2].) There, defendant convinced the California Supreme Court that the “cre- ative” atmosphere in the writers’ room for the adult-themed television show Friends required the use of sexually vulgar lan- guage. Following that decision, it is not
56— The Advocate Magazine APRIL 2011
surprising that defense counsel now claim all sorts of workplaces are “creative” and therefore sexually harassing conduct should be excused. But Lyle can virtually be limited to its
facts. First, plaintiff (a comedy writer’s assistant) conceded that none of the offen- sive conduct was “aimed at her.” Further, the Court concluded that, although there was no dispute that sexually vulgar lan- guage was regularly used in the writer’s room, most of the offensive language was not aimed at other women in the work- place. In addition, the Court found it “sig- nificant” that the plaintiff had agreed to work in the writer’s room of “a creative workplace focused on generating scripts for an adult-oriented comedy show featur- ing sexual themes . . . .” The vast majority of workplaces, how-
ever, are simply not in the business of pro- viding sexually-explicit comedy. The Supreme Court recognized that the FEHA was passed to guarantee that both sexes will enjoy equal employment benefits, and that an “employment benefit” specifically includes “provision of a workplace free of harassment.” (Id. at 278, citing
Cal.Code Regs., tit. 2, § 7286.5, subd. (f).) Thus, one way of showing sexual harassment in the workplace is to show “that gender is a substantial factor in the discrimination, and that if the plaintiff “‘had been a man she would not have been treated in the same manner.’ [Citation].” (Id. at 280.) Indeed, the U.S. Supreme Court has expressly recognized that discrimination may be shown by “direct comparative evi- dence” of an alleged harasser’s disparate treatment of male and female employees in the workplace. (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80-81 [118 S.Ct. 998].) In Lyle, given its
sui generis facts, the California Supreme Court found such disparate conduct miss- ing.
There is no “direct evidence” of discriminatory intent Defense counsel love to argue – or at
least imply – that a plaintiff must present at least some direct (as opposed to circum- stantial) evidence of unlawful intent (e.g., racial discrimination) in order to prevail. This is nonsense. The case law expressly recognizes that direct evidence of discrim- inatory intent is extremely rare and, most of the time, an employer’s intent must be “extracted through a complicated process of panning and sifting.” (O’Mary v. Mitsubishi Electronic America, Inc. (1997) 59 Cal.App.4th 563, 575 [69 Cal.Rptr.2d 389].) That is why, in the rare case where there is direct evidence of discriminatory intent, that evidence “is like a gold nugget which just happens to be lying on the ground . . . . evidence of clear discrimina- tory intent is overwhelmingly probative in a discrimination case because it shines a spotlight on the very thing which is the focus of the litigation.” (Ibid, emphasis added.) It must be stressed that a plain- tiff’s burden is only to present a prepon- derance of evidence supporting the claim. The suggestion the plaintiff is required to present “overwhelmingly probative” evi- dence is false and unfair.
The harassment claims disappear upon “dismemberment” In opposing harassment claims,
defense counsel often seize upon the following italicized language: “acts of harassment cannot be occasional, isolated, spo- radic, or trivial, rather the plaintiff must
See Navigating, Page 58
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