Thank you for sharing!

Your article was successfully shared with the contacts you provided.
San Francisco�Employees of municipal governments who suffer discrimination on the job can bypass their employers’ internal grievance procedures and seek relief directly with California’s anti-discrimination agency, the state Supreme Court has ruled. In a Dec. 1 decision viewed as a boon to public-sector employees, justices held that a plaintiff may choose whether to pursue a discrimination complaint internally or through the state Fair Employment and Housing Commission. The plaintiff is not required to exhaust internal procedures in order to file a complaint under the Fair Employment and Housing Act (FEHA). “The opportunity for all public and private employees to vindicate civil rights is the primary intent of the FEHA, and . . . this is why plaintiffs have a choice between their civil service remedies and those provided by the FEHA,” Justice Ming Chin wrote for the 5-2 majority. Schifando v. City of Los Angeles, No. 03 C.D.O.S. 10290. In a dissent, Justice Marvin Baxter said the majority’s decision would “eviscerate” a local government’s internal remedies and burden the courts with expensive litigation. “Under the majority’s holding, the road to possible conciliation, amicable settlement or mitigation of damages will first have to pass through the courthouse,” wrote Baxter, who was joined by Justice Janice Rogers Brown in the dissent. He wrote that the decision was “patently at odds” with the court’s Nov. 24 decision that limited damages for a plaintiff who does not report incidents of harassment to an employer, under the so-called avoidable consequence doctrine. Department of Health Services v. Superior Court of Sacramento County, No. 03 C.D.O.S. 10088. The case was closely watched by employment attorneys and drew amicus briefs on both sides. Participants included the regents of the University of California, the California Teachers Association and a consortium of 61 California cities. Charlotte Fishman, a staff attorney at Equal Rights Advocates, who filed an amicus brief on behalf of various employee organizations, called the decision a “total victory for employees.” She said the decision did not supplant an employer’s internal procedures, but gave workers the choice to pick the best forum. “So the idea is if you have a really good [internal system], people will use it,” Fishman said. “But if you don’t have a good one, people are going to go to the court system.” In the Schifando case, Steve Schifando claimed the city of Los Angeles discriminated against him because of a medical condition and coerced him into quitting his job as a storekeeper with the Parks and Recreation Department. Schifando obtained a right-to-sue letter from the Fair Employment and Housing Commission and sued in Superior Court. The city maintained that the suit was invalid since Schifando had not first exhausted his administrative remedies under the Los Angeles city charter. According to the California Supreme Court, however, exhausting the city charter’s procedures could effectively deprive Schifando of the rights afforded to all discrimination victims by the Legislature. The court said that the city charter procedures were not as favorable to plaintiffs as those in the employment act, which provide for longer statutes of limitations and payment for attorney costs. And the law provides a neutral forum, whereas the city is defendant and judge. The court said that having to navigate two separate administrative processes would force the plaintiff to walk a “procedural minefield,” with the risk of missing filing deadlines in one forum while waiting to exhaust remedies in another. “We do not serve judicial economy if we require employees who have allegedly suffered discrimination at the hands of public employers to pursue redress in two separate forums,” Chin wrote. “To do so would frustrate legislative intent and create a procedural labyrinth that aggrieved employees, often not represented by counsel at the early stages of litigation, would likely be incapable of navigating.” In his dissent, Baxter said the majority’s decision abrogated the well-established rule of exhaustion of administrative remedies. By first going through internal processes, the plaintiff gives an employer the chance to fix the problem. The employment act, Baxter wrote, was intended to supplement existing anti-discrimination remedies rather than supplant them. Chin was joined by Chief Justice Ronald George and justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.