LOOSE CANNON: Report In Opposition To The Confirmation Of Janice Rogers Brown To The United States Court Of Appeals For The DC Circuit

Discrimination Against People with Disabilities and Older Americans

Richards v. CH2M Hill, Inc., 29 P.3d 175 (Cal. 2001).

Lachi Richards was an engineer with CH2M Hill, Inc starting in 1984. In 1987 she began experiencing tremors and difficulty walking and in 1988 she was diagnosed with multiple sclerosis (MS). Initially, Richards’ supervisors agreed to her request for a part-time schedule in the wheel chair accessible Sacramento office. They also agreed that she would not have to perform fieldwork. When Richards’ symptoms worsened, she took leaves of absence, one of which lasted 10 months. She returned to work in 1990 and worked part time until 1993 when she resigned.

Throughout much of this time, disputes arose between Richards and her employer about her requests for reasonable accommodation of her disability. These disputes involved, among other things, her requests for various minor changes to the offices to allow her to maneuver her wheelchair. In many cases Richards’ requests were ignored or, when she herself moved obstacles and other furniture out of the way, they were moved back. At one point, Richards was asked by a manager to take a field assignment that would have involved walking along canal banks and climbing over barbed wire – Richards was in her wheelchair when the request was made and it was obvious that she would not be able to complete the assignment. Despite the fact that the human resources director finally made some adjustments in 1993, they were not sufficient. Richards finally determined that her health would be threatened if she continued to try to do her job and she resigned.

Richards filed her discrimination complaint on January 25, 1994. Because of the one year statute of limitations, CH2M Hill attempted to exclude evidence of any acts before January 25, 1993. The trial court rejected this argument and Richards presented the evidence of all of the obstacles she had confronted from 1988 through 1993. The jury awarded Richards $925,000 in emotional distress damages and $476,000 in economic damages. CH2M Hill appealed again arguing that all of the incidents that occurred before January 25, 1993 should be excluded, and this time the Court of Appeal agreed with CH2M. Richards then appealed to the California Supreme Court.

The California Supreme Court analyzed the statutes and case law on the subject and determined that the “continuing violation doctrine” should be applied in this case. This doctrine allows victims of discrimination to include evidence of acts which occurred outside of the statute of limitations so long as they were sufficiently connected to the acts which occurred within the statute of limitations. The high court remanded the case to the trial court to determine based on the facts of this case what time period should have been considered.

In a sharply worded dissent, Brown argued that it was unfair to employers to hold them responsible for their own on-going behavior without providing some sort of notice of the employee’s intent to sue. Instead, Brown argued that victims should file a lawsuit about each individual wrongful act – and that each discriminatory act should be considered separately and subject to the statute of limitations. Ironically, as the majority opinion pointed out, this scenario would have had the result of forcing victims to sue immediately instead of trying to work things out with their employer. Moreover, under Brown’s analysis, Richards’ employer would have escaped liability for most of the discriminatory action it took towards Richards.

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City of Moorpark v. Superior Court, 959 P.2d 752 (Cal. 1998).

In this case, Brown dissented in order to make clear that she would limit the avenues available to people with disabilities to sue for employment discrimination. A majority of the court held that a city employee who had been injured in the course of employment had several avenues under state law through which he could obtain justice. These included the FHEA, state labor laws related to workers compensation, and common law that bars employers from firing workers in violation of well-established, substantial and fundamental public policy. Brown agreed that the worker could file suit under the FHEA, but would deny workers with disabilities the right to bring lawsuits under the common law when their firing violated well-established, substantial and fundamental public policies – like the policy against firing people because they have disabilities. She also called into question the availability of a remedy under state worker’s compensation law. Brown dissented in another 1998 case concerning the common law rights of employees fired in violation of public policy, this time concerning an employee who claimed he was fired in retaliation for complaining about unsafe airplane component inspection practices, and argued that the court should “take a fresh look” at its long-established precedents in the area. Green v. Ralee Engineering Co., 960 P.2d 1046, 1073 (1998) (Brown,J., dissenting).

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Stevenson v. Superior Court, 941 P.2d 1157 (Cal. 1997).

According to the facts relied upon by the court, Joan Stevenson worked for Huntington Memorial Hospital for over 30 years. Shortly before her dismissal by the hospital, Ms. Stevenson took a period of approved medical leave from work. She informed the hospital that she wanted to return to work well within the period during which her right to reinstatement was guaranteed by hospital policy. Despite this, the hospital refused to reinstate her to her old position or to reinstate her to another position pending an available opening in her original job. Ultimately, the hospital fired Ms. Stevenson and she sued for age discrimination.

The court’s opinion deals primarily with the question of whether or not Ms. Stevenson was entitled to sue her employer under the common law theory that the hospital’s actions constituted a wrongful discharge because of a fundamental public policy against age discrimination. The majority of the court found that Ms. Stevenson could bring such a lawsuit – only Brown dissented. In her dissent, Brown ignored both the settled precedent of the court and the clear intent of the legislature. Brown’s own words made clear that her underlying position in this case was extreme: “...I would deny plaintiff relief because she has failed to establish the public policy against age discrimination ‘inures to the benefit of the public’ or is ‘fundamental and substantial.’”941 P.2d at 1177. Later in her dissent she even made the following highly questionable assertion: “Discrimination based on age is not, however, like race and sex discrimination. It does not mark its victim with a ‘stigma of inferiority and second class citizenship’ (citations omitted); it is the unavoidable consequence of that universal leveler: time.” 941 P.2d at 1187. As the majority explained, Brown’s dissent was “second-guessing the legislature” and “refuses to accept” the court’s prior precedent. 941 P.2d at 1174,1172.

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