Another Bad Law from Sacramento - AB 887 and "Gender Expression" Discrimination

Each year California enacts some very bad employment-related laws.  By “bad” I don’t mean that they are necessarily bad policy.  What I mean is that they are so poorly drafted that the policy itself is unintelligible.

One of this year’s “bad” laws is AB 887, which prohibits discrimination based on “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”

What can it possibly mean for one’s appearance or behavior to be “gender related?”  Webster’s defines “gender” as “the behavioral, cultural, or psychological traits typically associated with one sex.”  So the dictionary definition suggests that acting in a manner typically associated with one’s sex is now protected.  Thus, acting like an aggressive macho jerk would be protected if you are a man, or dressing in frilly pink ribbons and batting your eyelashes would be protected if you are a woman.

But then the statute doubles back on itself by providing that “gender-related” also means anything that is “not stereotypically associated” with the person’s sex. Thus “gender-related” is defined as anything associated with a person’s biological sex or anything that is not associated with the person’s biological sex. The statute thus prohibits discrimination based on everything that is either “x,” or “not x.”  It is literally meaningless as drafted.

I know nothing about the Legislative history of this bill.  Perhaps it was intended to prevent discrimination against transsexuals or transvestites.  But if that was the purpose why didn't the Legislature just say so.   

California Supreme Court Likely to Issue Ruling in Brinker Restaurant v. Superior Court Soon

Today, the California Supreme Court set oral argument in Brinker Restaurant v. Superior Court (Hohnbaum) to take place on November 8, 2011. The Court typically provides a ruling on cases within 90 days of oral argument, so I expect a ruling very early in 2012.

This case is the much anticipated ruling on whether employers need to “ensure” meal breaks or merely make the breaks available to employees.  The Supreme Court explains, "This case presents issues concerning the proper interpretation of California's statutes and regulations governing an employer's duty to provide meal and rest breaks to hourly workers."   Click here for a detailed analysis of the lower court’s ruling and the different issues that the Supreme Court may address.

We will continue to provide case updates routinely as the decision nears. 

Breaking News -- Brinker Set for Oral Argument

According to the automated notice from the California Supreme Court, oral argument in Brinker v. Superior Court (Hornbaum) has been set for November 8, 2011.  This means the Court's long-awaited opinion (which will presumably clarify the standards for providing meal periods for employees) will likely be issued some time early next year.

Does Wal-Mart v. Dukes Impact California Wage and Hour Claims -- U.S. Supreme Court Vacates Certification Order in Chinese Daily News v. Wang

The U.S. Supreme Court yesterday vacated the Ninth Circuit decision in Chinese Daily News v. Wang, which had upheld class certification of various California Labor Code claims.  The Supreme Court makes no substantive analysis of the opinion but merely directed that it be remanded back to the Ninth Circuit "for further consideration in light of Wal-Mart Stores, Inc. v. Dukes."  

Some may see this as a vindication of the view that Dukes is a "game changer" for certification of wage and hour claims.  But I tend to disagree. 

The unusual aspect of the Chinese Daily News decision was that it had based certification of the plaintiffs' monetary wage claims under both Rule 23(b)(2) (applicable to equitable claims) and Rule 23(b)(3) (applicable to damage claims).  Dukes however rejected the use of Rule 23(b)(2) for certifying monetary claims.   So it is understandable that the case was vacated and remanded. 

The vast majority of wage claims, however, are certified exclusively under Rule 23(b)(3).  And Dukes did not change the standard applicable to that prong of the rule.   Consequently, I predict that the Ninth Circuit will merely decide on remand that certification in the Chinese Daily News case was independently proper under Rule 23(b)(3). 

For example, in the recent Second Circuit opinion of Shahriar v. Smith & Wollensky Restaurant Group, the Court upheld class certification of wage claims under Rule 23(b)(3) without finding the need to even mention Dukes. 

In short, at this point there is really no reason to believe that Dukes will have any significant impact on class certification of California wage and hour claims.