In late May 2018, the California Court of Appeals for the First Appellate District in Abed v. Western Dental Services, Inc., concluded a potential employer can be held liable under the California Fair Employment and Housing Act (FEHA) for thwarting pregnant employment candidates from applying for jobs.
In Abed, the plaintiff sued Western Dental Services, Inc. (Western Dental) claiming she was denied a job because she was pregnant even though she never submitted a job application. According to Plaintiff she did not bother submitting an application because Western Dental allegedly falsely told her no job was available. The trial court dismissed the case on a motion for summary judgment in the prospective employer’s favor since Plaintiff had not submitted an employment application to Western Dental. However,
the Court of Appeals reversed the trial court’s decision.
The Appellate Court found that there were triable issues of fact as to whether Western Dental intentionally discriminated against plaintiff by falsely telling her that no position was available and, thus, violated FEHA.
The Appellate Court indicated that the plaintiff has the initial burden of producing evidence that establishes a prima facie case and must provide evidence that (1) he [or she] was a member of a protected class, (2) he [or she] was qualified for the position he [or she] sought, (3) he [or she] suffered an adverse employment action, such as denial of an available job, and (4) some other circumstance suggests discriminatory motive such as the position remained open and the employer continued to solicit applications for it.
If the plaintiff establishes a prima facie case, creating a presumption of discrimination, the burden shifts to the employer to provide a legitimate, nondiscriminatory reason for the challenged action. It pointed out that, in most cases alleging a failure to hire for discriminatory reasons, the prima facie case includes as an element a showing that the plaintiff applied for the job. The Appellate Court held, however, that the plaintiff need not establish any particular element so long as he or she ultimately presents enough evidence to support an inference that an employment decision was discriminatory.
Based on the facts in Abed the Appellate Court reversed and remanded the matter back to the trial court finding that Abed had presented enough evidence to entitle her to a trial on her FEHA pregnancy discrimination claim but recognized “that this case involves many disputed factual issues, and a jury may eventually agree with Western Dental that it did not intentionally discriminate against Abed.”
Whether or not Western Dental ultimately prevails it could have entirely avoided this litigation if it had proper procedures in place to never advise that a position is no longer available and always accept employment applications. To assure your business has the proper rules and protocols in place for dealing with and vetting prospective employees, have them reviewed by your attorney and HR consultant and assure that your hiring staff is well trained in the murky legal area of what can and cannot be said to a prospective job applicant.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
