Businesses across the state scored a win earlier this month when the California Supreme Court made it harder for a fired employee to win damages for discrimination.

But the win could be short-lived, if plaintiffs’ attorneys and civil rights groups have their way. Led by the California Employment Lawyers Association in Encino, the groups are already strategizing how to negate the ruling through new legislation. Some started preparing for a potential fight before the ruling even came down.

The ruling, which was widely anticipated, states that a fired employee must prove that discrimination played a “substantial” role, and not just any role, in his firing in order to win damages, back pay or reinstatement from a former employer. Even then, employers can avoid a payout by proving the employee would have been fired for independent reasons. A plaintiff had previously only to prove there was some discrimination to win damages.

The ruling will make it easier for California employers to ward off discrimination lawsuits, experts say. Such claims present a legal headache for businesses in California, which has more employment discrimination claims than other states due in part to aggressive plaintiffs’ attorneys and generous state laws. In the week of the Feb. 7 ruling alone, at least 19 discrimination lawsuits were filed by fired employees in Los Angeles Superior Court against employers including Southern California Gas Co., Hula Post Production in West Los Angeles and downtown L.A. parking lot owner L&R Auto Parks Inc., according to court records.

Plaintiffs’ attorneys, with their ability to win such cases now weakened, aren’t happy with the ruling and are looking for a way to fight back. A spokeswoman for the Employment Lawyers Association, a statewide group with more than 1,000 members, told the Business Journal within days of the ruling that it was considering pushing a bill in the state Legislature that would undo the ruling and make it easier again for plaintiffs to recover damages. It began working with other organizations on a draft of a potential “spot bill” – a generic bill that can be amended later – even before the ruling came down.

The organization is now talking to groups including AARP and two San Francisco groups, Equal Rights Advocates and the Legal Aid Employment Law Center, to see whether new legislation might be possible.

Challenge coming

“We are talking to civil rights organizations to see what legislative fix we can come up with,” said Toni Jaramilla, a Century City employment attorney and the group’s chairwoman. “The ruling would deny or cut off damages to the plaintiffs if the defense can prove it would have fired the employee anyway, and the legislative fix is going to be potentially addressing that.”


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