and held that discriminatory remarks must be considered in the mix of evidence regardless of whether they were made by decisionmakers or contemporaneously with the adverse employment action, • Ruled that evidence of discriminatory personnel management actions must be considered in analyzing whether an employee has been subjected to hostile work environment, • Reaffirmed that discriminatory remarks by non-decisionmakers are admissible to demonstrate that input by the biased non- decisionmakers infected the decision- making process, • Ruled that pretext may be inferred from an employer’s failure to utilize neutral investigators and interview exculpatory witnesses regarding the alleged misconduct for which it claims it fired an employee, • Held that summary adjudication is rarely appropriate in employment cases turning on issues of motive and intent, and • Repeatedly rejected the “same actor” defense. The breadth of these recent rulings,
and the impact they will have on employment litigation going forward, cannot be overstated. The expanded scope of discovery authorized by these decisions should encourage both employers and employees to explore the possibility of early settlement, given the danger of increased attorney’s fees and potential expansion of individual cases into class claims if the broader discovery necessitated by these recent rulings reveals systematic, widespread unlawful policies and practices. For those cases that don’t settle early, employees and their attorneys should have a significantly easier time obtaining necessary discovery, defeating summary judgment motions and prevailing at trial.
Lee Feldman is the founding partner of
The Feldman Law Firm, a five-attorney employment litigation firm exclusively represent- ing employees in wrongful termination, dis- crimination and harassment claims along with wage and hour class actions. He is a frequent speaker on employment law topics.
www.landmarkimaging.com (310) 914-7336
11620 Wilshire Blvd., Suite 100, Los Angeles, CA 90025 APRIL 2011 The Advocate Magazine — 91
Gina Browne is a partner at The
Feldman Law Firm, where she specializes in the representation of employees in discrimina- tion and related employment cases. Ms. Browne
received her J.D. from Loyola Law School in 2003.
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