Navigating — continued from Page 70
A discriminatorily abusive work envi- ronment, even one that does not seri- ously affect employees’ psychological well-being, can and often will detract from employees’ job performance, dis- courage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s [and FEHA’s] broad rule of workplace equality.
(Ibid.)
The future economic damages award is excessive The defense also frequently attacks
economic damages awards. In Hope v. California Youth Authority (2005)134 Cal.App.4th 577 [36 Cal.Rptr.3d 154], for example, the jury implicitly found that Hope (who was HIV-positive) could not mitigate his future loss of earnings because he could not work again. The defense argued that the employee (Hope) had the burden of proving mitigation,
i.e., that he could never work again. The court found this argument was based on a few false premises. Quoting a California Supreme Court case, Hope stated: The general rule is that the measure
of recovery ... is the amount of salary ... for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment.... [T]he employer must show that the other employment was compara- ble, or substantially similar, to that of which the employee has been deprived; the employee’s rejection of or failure to seek other available employment of a differ- ent or inferior kind may not be resorted to in order to mitigate damages.
(Id. at 595, quoting Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181-182 [89 Cal.Rptr. 737].) Hope had testified that he accepted
the job with the state because he was look- ing for a permanent, lifetime job. The court concluded that, because the defense offered no evidence as to the amount that Hope might have earned through reasonable effort, nor the avail- ability of comparable or substantially similar employment, the defense’s mitigation
argument failed. (Id. at 595.) Therefore, the jury’s verdict was affirmed. In State Dept. of Heath Services v. Superior
Court (2003) 31 Cal.4th 1026 [6 Cal.Rptr. 441], a suit based on sexual harassment in the workplace, the Court concluded that the reasonableness of the plaintiff’s efforts to mitigate damages “are judged in light of the circumstances at the time, not with hindsight, and the standard used to meas- ure the reasonableness of those efforts is not as high as the standard used in other areas of law. . . . The defendant claiming avoid- able consequences must plead and prove that defense.” (Id. at 1042-1044.) Beverly Tillett Pine is a partner in Pine
& Pine, located in Sherman Oaks, CA. She focuses her practice exclusively on civil appeals
in both state and federal courts. She is a recipi- ent of the California Employment Lawyers Association, Joe Posner Award 2008 (with Norman Pine), and has repeatedly been nomi- nated for CAALA’s Appellate Attorney of the Year Award (2007-2010). She is co-editor (along with Norman Pine) of the annual Employment Law issue of CAALA’s Advocate.
RETAIL INDUSTRY We evaluate all issues of industry standards concerning the Over 50 years of
hands-on experience in all retail
store procedures
Alex J. Balian, MBA Balian & Associates
EXPERT WITNESS 72— The Advocate Magazine APRIL 2011
SUPERMARKETS RESTAURANTS SPECIALTY STORES
GENERAL MERCHANDISE STORES FAST FOOD OPERATIONS CONVENIENCE STORES
Slip/Trip and Fall ADA Compliance
Food Handling Procedures Floor Care &
Maintenance Procedures
HOME IMPROVEMENT CENTERS WAREHOUSE STORES
SMALL BUSINESS OPERATIONS
Merchandising Procedures Internal Operation Procedures Store Security Loss Prevention
Wrongful Termination
www.balian-and-associates.com (818) 702-0025
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112