2006 California Employment Law Developments

The employment defense firm websites and large firm web sites have been publishing their year-end employment law updates.  I think one of the better ones is Storm's.  As he points out, this wasn't really a barn-burner year for employment law.  Probably the most significant case from SCOTUS was Burlington No. & Santa Fe RY Co. v. White (2006) ___U.S.___, 126 S.Ct. 2405 (2006), which stands for the proposition, among other things, that in a Title VII retaliation suit, an employment action may be "materially adverse" if it might dissuade a reasonable worker from making a discrimination charge.  Bear in mind that before Burlington, many Federal Courts held that to bring a retaliation suit, the plaintiff had to show that the "adverse" action materially affected the terms, conditions or privileges of employment.  The Burlington standard is a more plaintiff-friendly one.

But the really interesting conundrum for lawyers in California is this:  In 2005, the California Supreme Court took the opposite view, ruling that an action was "materially adverse" under California's Fair Employment and Housing Act only if it affected the terms, conditions or privileges of employment.  And while not the only reason for the decision, a primary reason was the California Court's beliefs that this was what the Federal law provided, and there should be harmony between State and Federal employment law!  Well, that harmony is all gone now, and I'm not sure quite how the California Supremes fix the problem less than two years later.