Age Discrimination: Disparate Impact

Rosenfeld v. Abraham Joshua Heschel Day School, (Second District, May 28, 2014) 2014 WL 2200910, — Cal.Rptr.3d —-

A 60 year-old teacher at a private elementary and middle school whose hours were cut by her employer filed an action against the school, asserting causes of action for discrimination on the basis of age under the California Fair Employment and Housing Act (FEHA) ( Gov.Code, § 12940); constructive wrongful termination; failure to prevent discrimination; constructive wrongful termination in violation of public policy; intentional infliction of emotional distress; and negligent infliction of emotional distress. The plaintiff alleged that the defendant had repeatedly and systematically reduced her teaching hours in an effort to force her out of her position because of her age, and replace her with workers under 40. She also alleged that she was forced to resign her employment because her work environment had become intolerable.

Following a verdict in favor of the defendant, the plaintiff appealed, contending that the trial court had erred in precluding her from proceeding with her disparate impact claim in addition to a disparate treatment theory. The court of appeal affirmed, holding that because the plaintiff’s pleadings solely alleged a theory of disparate treatment, based upon intentional discrimination, the trial court properly barred her from pursuing a disparate impact claim at trial:

Rosenfeld’s pleadings solely alleged a theory of disparate treatment, based upon intentional discrimination. Her papers were insufficient to put Heschel on notice that she intended to pursue a disparate impact theory at trial.

“Disparate treatment” is intentional discrimination against one or more persons on prohibited grounds. … A disparate treatment claim, i.e., a claim that an employer has treated a particular person less favorably than others because of the plaintiff’s race, sex, or other protected category, “involve[s] ‘the most easily understood type of discrimination.’ ”…

A claim of disparate impact differs from a claim of disparate treatment in that a plaintiff is not required to prove discriminatory motive when claiming disparate impact. Disparate impact exists where, “regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.” … If the employee makes a showing that the employer’s facially neutral policy has a disparate impact, “ ‘the employer must then demonstrate that “any given requirement [has] a manifest relationship to the employment in question,” in order to avoid a finding of discrimination. …

Rosenfeld merely pled disparate treatment, that is to say, Heschel intentionally discriminated against her based on her age. She did not plead disparate impact, i.e., that Heschel had a facially neutral employer practice or policy which bore no manifest relationship to job requirements but which, in fact, had a disproportionate adverse effect on older employees.

Rosenfeld’s case management conference statement was consistent with her pleadings. Rosenfeld’s statement of the case provided: “Plaintiff, who was a teacher at [Heschel], contends that her hours were repeatedly reduced, year after year, in an effort to force her out of her position because of her age.” Again, this asserted a claim of disparate treatment, not disparate impact.

… As for Rosenfeld’s proposed jury instructions and trial brief relating to disparate impact, those filings occurred on the eve of trial, long after the close of discovery. Thus, Rosenfeld failed to give timely notice to Heschel that she intended to pursue a disparate impact theory at trial.

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