Metropolitan News-Enterprise


Thursday, May 24, 2018


Page 1


Court of Appeal:

Lying to Pregnant Woman Can Be a Violation of FEHA

Action by Expectant Mother Is Not Precluded on the Ground That No Employment Application Was Made

Where a False Statement to Her That No Jobs Were Available Deterred Applying—Opinion


By a MetNews Staff Writer


The First District Court of Appeal held yesterday that an potential employer can be held to have violated the Fair Employment and Housing Act by deterring a pregnant woman from applying for a job through lying to her that there were no openings.

Presiding Justice James M. Humes of Div. One wrote the opinion. It reverses a grant of summary judgment to defendant Western Dental Services, Inc. on a claim by plaintiff Ada Abed under the Fair Employment and Housing Act (“FEHA”), but affirms summary judgment in favor of the defendant as to a cause of action for invasion of privacy.

Napa Superior Court Judge Rodney G. Stone found that Abed could not maintain an action under FEHA because she did not fill out an application.

“Even though Abed never applied for a job,” Humes wrote, “she raised triable issues of material fact as to whether Western Dental intentionally discriminated against her by falsely telling her that no position was available.”

Prima Facie Case

Stone’s view was that because Abed had not applied for the job of dental assistant, she failed to make out a prima facie case of discrimination. Humes said:

“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. This is usually an element because it establishes that the employer knew the plaintiff was actually seeking a job….[E]ven when a defendant employer has presented evidence undermining a usual prima facie element, a plaintiff can still defeat summary judgment by presenting evidence that establishes a prima facie case in a different way or otherwise creates triable issues as to whether the employer engaged in actionable discrimination.”

In granting summary judgment, Stone found that Abed had not shown that filling out an application would have been a “futile gesture.” Humes responded:

“We disagree with the trial court that the survival of Abed’s FEHA claim depended on the futile-gesture doctrine. The claim is not that it would have been futile for Abed to apply (even if it might have been) so much as it is that Western Dental caused her not to apply by falsely telling her for discriminatory reasons that no position was available. This is a different, but also legitimate, reason for her not to have applied. And because the futile-gesture doctrine has little applicability here, we disagree with the court’s determination that it mattered that Abed presented no evidence of a ‘consistently enforced discriminatory policy.’ ”

Not Visibly Pregnant

At the time Abed was lied to that there were no openings, she was not obviously pregnant. She was an extern at a dental office, and pre-natal vitamins had been spotted in her purse.

The possibility of her pregnancy was a matter of office gossip. It was Abed’s supervisor, Sabrina Strickling, who told her no jobs were open.

Western Dental argued that what Strickling said was of no significance because she had no meaningful involvement in the hiring process.

“Were this a typical failure-to-hire case in which a plaintiff was not hired after completing the application process, the evidence of Strickling’s limited involvement in hiring decisions might defeat the imputation of her discriminatory animus to Western Dental,” Humes wrote. “Here, however, the allegedly discriminatory act that led to Abed’s not being hired was the thwarting of her application by falsely representing there was no opening, and there is evidence Strickling played a key role in effectuating that act.”

The case is Abed v. Western Dental Services, Inc.  A150933.


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