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October 2004 
Vol. 10 No. 5 ISSN 1087-6219
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The Second District Court of Appeal in Los Angeles upheld a Fair Employment and Housing Commission decision that found religious discrimination when an employer disciplined an employee for being absent for a Jehovah's Witness convention.
Lester Young told his supervisor that he needed up to two days off because he was a Jehovah's Witness and was planning to attend a religious convention on at least one day that he would normally have worked. When the necessary approvals did not come through he missed work for the convention and received a 10-day suspension. A few days after he threatened to file an administrative complaint, he was fired.
The Fair Employment and Housing Act requires California employers to relieve their employees from duties that conflict with their religious beliefs and observances, unless doing so would impose an undue hardship. In assessing whether there is a conflict between religion and job duties, courts are concerned with the sincerity of the employee's beliefs, not their truth.
Further, it is enough that the employee wishes to be relieved of duty to attend to a religious observance. There is no requirement that the religion mandate attendance.
In this case, the convention was a religious observance, and the employer did not even attempt to accommodate Young's request for time off to attend.
California Fair Employment and Housing Commission v. Gemini Aluminum Corp., 2004 WL 2180828 (Cal. Ct. App. Sep. 29, 2004).
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The Second District Court of Appeal in Los Angeles has ruled that an expert's opinion on the triviality of a sidewalk defect cannot defeat summary judgment when the facts could not support his opinion.
Josephine Caloroso tripped over a small crack in the walkway in front of Larry Hathaway's home. Hathaway moved for summary judgment in her ensuing personal injury lawsuit, claiming that the 7/16 of an inch gap created by the crack was too trivial to establish premises liability.
Caloroso opposed the motion with a declaration from a civil engineer who stated that the walkway was dangerous. The Court of Appeal affirmed the trial court's refusal to consider the affidavit.
A property owner is not liable for damages caused by a minor, trivial or insignificant defect in his property. In deciding whether a defect is trivial, the court considers the size of the crack, other conditions of the walkway, and the time of day that the injury occurred.
In this case, the summary judgment motion included pictures that showed the height and irregularity of the crack. The expert's opinion added nothing to the trial court's analysis.
Caloroso v. Hathaway, 2004 WL 2165399 (Cal. Ct. App. Sep. 28, 2004).
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The Third District Court of Appeal in Sacramento has ruled that a homeowners association was required to allow a married couple to keep a dog that alleviated their symptoms of depression, even though association rules did not allow dogs.
Ed Elebiari and his wife Jayne both suffer from depression. They owned a condominium in Auburn Woods, which prohibited all animals except pet birds and domestic house cats. Nonetheless, they purchased a small terrier named Pooky, because Jane believed that Pooky would help with their depressions.
Pooky's presence did alleviate depression for both Ed and Jayne, but the Auburn Woods property manager cited them for violating the no-dog rule. They provided letters from their psychiatrist, who stated that Pooky was improving his patients' emotional well- being. Auburn Woods refused to bend.
The Fair Employment and Housing Commission ruled in the Elebiari's favor, but the trial court set the decision aside. The Court of Appeal reversed, and reinstated the FEHC decision.
The Fair Employment and Housing Act makes it unlawful to refuse to make reasonable accommodations in rules when accommodations are necessary to afford a disabled person equal opportunity to use and enjoy a home. The Act requires waiver of no-pet rules in some circumstances.
In this case, Auburn Hills stubbornly refused to accede to the Elebiaris' request. The property manager thought that a house cat would be just as good as a dog. That was no defense in the face of the psychiatrist's opinion that the dog was needed to improve the Elebiaris' emotional well-being.
Auburn Woods I Homeowners Assn. v. FEHC, 2004 WL 1888284 (Cal. Ct. App. Aug. 25, 2004).
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The Third District Court of Appeal in Sacramento has struck down an affirmative action program adopted by the Sacramento Municipal Utility District (SMUD). The District did not provide substantial evidence that it would lose federal funding if it failed to use race- based measures for selecting contractors.
SMUD conducted two studies five years apart, which showed a statistically significant race-based disparity among its contractors. To remedy the disparity, SMUD adopted an affirmative action program that provided a price advantage, evaluation credits and other benefits to contracting firms owned by African Americans and Hispanic Americans. C&C Construction, a contractor that was not entitled to the benefits, sued to enjoin the program.
Proposition 209, adopted by California voters in 1996, prohibits public entities from granting preferential treatment based on race in public contracting. It differs from the equal protection clause of the federal constitution because it does not allow those covered by its proscriptions to justify otherwise unlawful practices based on a compelling governmental interest.
Proposition 209 does allow public entities to grant preferential treatment, if it is necessary "to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds." SMUD argued that federal funds it received from three federal agencies would be at risk if it did not engage in preferential treatment.
The Court of Appeal ruled that SMUD's evidence did not establish that preferential treatment was necessary to prevent loss of federal funds. Although federal laws and regulations did require SMUD to assure racial balance, they did not require SMUD to use race-based preferential treatment. SMUD did not even consider possible race-neutral methods of ensuring compliance with federal law.
C&C Construction, Inc. v. Sacramento Municipal Utility District, 2004 WL 2039130 (Cal. Ct. App. Sep. 14, 2004).
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Subsequent treatment of decisions reported on in earlier issues:
Catholic Charities of Sacramento, Inc. v. Superior Court (June 2004 issue), cert. denied (Oct. 4, 2004.
Haney v. Aramark Uniform Serv., Inc. (September 2004 issue), petition for review filed (Sep. 17, 2004).
Prouty v. Gores Technology Group (September 2004 issue), now reported at 121 Cal. App. 4th 1225 (2004).
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