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April 1997 
Vol. 3 No. 4 ISSN 1087-6219
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The First District Court of Appeal in San Francisco has ruled that the State Bar's mandatory continuing legal education program violates the equal protection clause. The court could not discern a rational basis for the exemptions from MCLE for state legislators, retired judges and full-time law professors.
In 1993, the California Bar removed Lew Warden, a 73-year old member of the California bar, from the list of active members for failure to file proof of compliance with the MCLE requirements. Claiming a violation of his right to equal protection, Warden sued for damages, declaratory relief and an injunction. The Alameda County Superior Court granted summary judgment for the State Bar. The Court of Appeal reversed, declared that the MCLE program is unconstitutional, and ordered Warden's reinstatement.
By statute and Rule of Court, each California lawyer must complete 36 hours of continuing legal education every three years. The stated goal of the requirement is to protect the public from lawyers who are unfamiliar with current law, legal ethics and law office management. The court questioned the efficacy of some MCLE programs, such as one for “sports nutrition,” but assumed that some programs do contribute to the regulatory goal.
The regulatory scheme exempts retired judges, state officers and elected officials, full-time law professors, and federal and state government lawyers who practice law for the government. The Court of Appeal said that the government lawyer exemption might pass muster, since it only applies to those who do not represent individual members of the public. However, the only explanation for the elected official exemption was that some legislators “didn't want to be dragged into a classroom.” Similar sentiments led to the other exemptions. That is not a rational basis for different treatment, because most lawyers probably do not want to be dragged into a classroom.
Concurring and dissenting Justice Haerle agreed with the equal protection analysis. However, he would have struck the exemptions rather than the MCLE program itself.
Warden's victory may not be permanent. The State Bar intends to pursue further appellate remedies. Even if the ruling stands up, it should be a simple matter to implement a revised MCLE program without the offending exemptions.
Warden v. State Bar of California, 1997 WL 114436 (Cal. Ct. App. Mar. 13, 1997).
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The Ninth Circuit has ruled that a male prisoner may not pursue a civil rights claim against female guards. The guards allegedly subjected him to up-close body cavity searches, and watched and joked about him while he showered.
Qualified immunity protects government officials from liability under 42 U.S.C. § 1983. To overcome the immunity a plaintiff must show (1) that the official violated a “clearly established” right, and (2) that a reasonable official could not have believed his or her conduct was lawful.
There was no clearly established Fourth Amendment right. The Supreme Court has yet to recognize that prisoners have any Fourth Amendment right to privacy. See Hudson v. Palmer, 468 U.S. 517 (1984). The Ninth Circuit had previously decided that female guards could observe naked male prisoners. Michenfeld v. Sumner, 860 F.2d 328 (9th Cir. 1988). It had not spoken about up-close body cavity searches.
There was no violation of a clearly established Eighth Amendment right. That would have required proof of (1) a culpable state of mind, and (2) objectively harmful conduct. Hudson v. McMillian, 503 U.S. 1 (1992). Body cavity searches and joking do not rise to the level of objectively harmful conduct.
In Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993), the court had upheld an injunction barring physically invasive searches of female prisoners by male guards. However, psychological differences between men and women mean that women may react differently to body cavity searches than men. Further, the female guards in the present case made no physical contact with the male prisoner.
Somers v. Thurman, 1997 WL 131825 (9th Cir. Mar. 25, 1997).
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The Second District Court of Appeal in Los Angeles has ruled that an employer who knows about an employees disability has an affirmative duty to inform the employee about other job opportunities, and to determine whether the employee is qualified. The ruling came in a case brought by two former United Air Lines pilots with AIDS.
California's Fair Employment and Housing Act (FEHA) requires employers to make reasonable accommodations for their disabled employees, unless doing so would impose an undue hardship. Reasonable accommodation is a flexible standard, that may involve such things as job restructuring or reassignment, modified work schedules, or modifications to the workplace.
The Court of Appeal ruled that summary judgment as to one of the plaintiffs was proper, because he was so sick that he could not have performed any alternative job. The other plaintiff was functioning within normal limits, although he could no longer meet FAA certification requirements for pilots. United placed him on disability leave at 55% of his salary.
United argued that it had no duty to investigate other potential accommodations, because the employee did not request an alternative position. The Court of Appeal ruled that the law was otherwise. Therefore, there was a factual issue as to whether there was some other accommodation that United could have made without undue hardship.
Prilliman v. United Air Lines, Inc., 1997 WL 133250 (Cal. Ct. App. Mar. 25, 1997).
Practice Tip To
avoid liability under FEHA, an employer who knows about an employee's disability must make
a diligent effort to accommodate the disability. The employer should consider the disabled
employee for any vacant positions, and should consider adjusting the job requirements
while still preserving its essential functions. It is not enough to offer an
accommodation, without meaningful considerations of the available alternatives.
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The Ninth Circuit has ruled that the "continuing violation" doctrine used in Title VII cases applies to Monell claims under 42 U.S.C. § 1983. The doctrine entitled the plaintiff to bring her employment discrimination claim within a year after she quit her job.
Yovana Gutowsky worked as a communications clerk for the County Department of Public Works. She wanted to become an equipment operator. Her supervisors would not allow her to use County equipment to practice for the commercial license that she would need to qualify for equipment operator. The County had never hired a woman as an equipment operator. Gutowsky herself never applied for the position, claiming that to do so would have been futile. She quit her job with the County in May 1993, and commenced her action in May 1994.
The County argued that the statute of limitations barred her action, because the discrimination had occurred in December 1992 when Gutowsky's name did not appear on the eligibility list for equipment operator.
Although there was a "dearth of authority" on the subject, the Ninth Circuit ruled that the continuing violation doctrine applied to claims against a government entity for unlawful practices under Monell v. Department of Social Services, 436 U.S. 658 (1978). Otherwise, "it is difficult to ascertain exactly when such claims would accrue."
In the present case, Gutowsky presented evidence that the County had a continuing practice of refusing to put women in the cabs of snowplows and other heavy equipment. The practice continued up to her last day of work.
Her failure to file an application did not defeat her claim. Drawing again on Title VII law, the Ninth Circuit ruled that there was sufficient evidence to allow a jury to decide whether her application would have been futile. Cf. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977).
Gutowsky v. County of Placer, 1997 WL 94070 (9th Cir. Mar. 6, 1997).
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The Second District Court of Appeal in Los Angeles has ruled that parties may agree to arbitrate Unruh Civil Rights Act claims. The case concerned the legality of an additional deductible for maternity benefits.
The health insurance policy that Blue Cross issued to the Wolitarskys imposed a $2,000 deductible for maternity care. It also provided that "any dispute . . . regarding the decision of Blue Cross must be submitted to binding arbitration." The Wolitarskys asserted that the provision violated the Unruh Civil Rights Act. Cal. Civ. Code §§ 51 et seq. The Superior Court denied Blue Cross's petition to compel arbitration.
The Court of Appeal held that the possible illegality of the maternity care deductible could not render the entire policy revocable. Therefore, it was for the arbitrator to decide whether the deductible was illegal. See Moncharsh v. Heily & Blase, 3 Cal. 4th 1 (1992).
The Civil Rights Act provides that claims under it are "independent of any other remedies or procedures." It does not prohibit parties from agreeing to arbitration of such claims. Therefore, the Superior Court should have ordered the dispute to arbitration.
Wolitarsky v. Blue Cross of California, 61 Cal. Rptr. 2d 629 (Ct. App. 1997).
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The San Diego division of the Fourth District Court of Appeal has ruled that an employer may not invoke the in pari delicto defense to a tortious discharge claim. The defense may apply to an employee's contractual claims.
Jeffrey Jacobs worked as a sales and marketing director for four Universal Development residential developments. He protested Universal's payment of "out of escrow" rebates, because he believed that they were illegal. He alleged that Universal fired him for his opposition to that illegal practice, in violation of public policy.
The Superior Court entered summary judgment in favor of Universal on its in pari delicto defense. The Court of Appeal reversed.
In pari delicto means of equal fault. Courts apply the defense to avoid lending their aid to the enforcement of an illegal agreement. For example, a court may properly dismiss an employee's claim to enforce an employment contract, if the purpose of the contract was to defraud the employer's creditors. Severance v. Knight-Counihan Co., 29 Cal. 2d 561 (1947).
However, courts should not apply the doctrine blindly to every case that involves some illegality. It should not apply if its application will unjustly enrich the defendant, or where the defendant has greater moral fault.
Universal presented evidence that Jacobs earned $125 for each escrow that closed, including 12 that involved allegedly illegal rebates. The Court of Appeal said that Jacobs had merely acquiesced in the illegal rebate program. That was not as reprehensible as Universal's adherence to the practice.
In any event, the in pari delicto defense did not apply. Jacobs was not seeking to enforce his employment contract. He asserted a claim for tortious discharge in violation of public policy. No case has directly rejected the in pari delicto defense in such circumstances. However, other cases have made it clear that “vindication of the fundamental public policy interest is not automatically foreclosed by the employee's past acquiescence in his employer's illegal conduct.” Cf. Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988); Smith v. Grown-Forman Distillers Corp., 196 Cal. App. 3d 503 (1987).
Jacobs v. Universal Dev. Corp., 61 Cal. Rptr. 2d 364 (Ct. App. 1997).
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Subsequent treatment of decisions reported on in earlier issues:
Armstrong v. Optical Radiation Corp. (December 1996 issue), review denied (Feb. 19, 1997).
Braun v. Chronicle Publ'g Co. (March 1997 issue), now reported at 52 Cal. App. 4th 1036 (1997).
County of Los Angeles v. Superior Court (December 1996 issue), review granted (Mar. 12, 1997). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.
Doe v. Capital Cities (December 1996), review denied (Feb. 25, 1997).
Fiol v. Doellstedt (December 1996), review denied (Feb. 19, 1997).
People v. Coley (March 1997), now reported at 52 Cal. App. 4th 964 (1997).
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