| Following
a highly publicized eight-day jury trial resulting in dozens
of jury findings, the District court agreed with the defense
that, as a matter of law, Mr. Hunt was a “policymaker”
as a member of the Orange County Sheriff’s Department’s
management team, and therefore was not entitled to any First
Amendment protection for his election activities.
Additionally, the Court ruled that even if Mr. Hunt was
not a “policymaker” under the pertinent First
Amendment case law, former Sheriff Carona
was nonetheless entitled to qualified immunity, and the
court ordered that judgment be entered
in favor of the Defendant. The Court’s
written opinion will be issued soon and is a significant
development in this area of First Amendment law.
Lynberg
& Watkins Successfully Opposes ACLU Challenge to Gang
Injunction.
Norm
Watkins, Shel
Harrell, and Keith
Dobyns of the Orange County Office of Lynberg &
Watkins successfully opposed a challenge to a gang injunction
issued by an Orange County Superior Court Judge.
A
federal judge denied a request by the American Civil Liberties
Union to block a state court issued gang injunction aimed
at breaking up a criminal street gang located in the City
of Orange.
The ACLU sought to invalidate the gang injunction
and prevent its enforcement against members of the gang.
The
gang injunction was issued against the Orange Varrio Cypress
criminal street gang and its members and restricted their
ability to associate and congregate in a 3.8 square mile
radius of Orange.
Several individuals challenged the injunction and
sought their own injunction to prevent its enforcement.
The individuals complained that the gang injunction
violated their constitutional rights.
They filed a complaint in United States District
Court requesting that a preliminary injunction issue that
invalidated the gang injunction and prevented its enforcement
until a full hearing could occur on whether the gang injunction
violated the individuals' constitutional rights.
In
denying the requested preliminary injunction, Judge Valerie
Baker Fairbank of the United States District Court determined
that the ACLU was seeking relief that was unclear, not workable,
and required the federal court to unnecessarily and improperly
interfere with a state court proceeding.
Judge Fairbank said any action taken to invalidate
a state court injunction order "would be an affront to comity
and an impairment of the sovereign powers or dignity of
the State of California."
School
Law
Students
with Limited English Proficiency Can Be Required to Take
Standardized Tests in English.
A
recent California Appellate Court decision has held that
the state Board of Education did not violate the provisions
of No Child Left Behind (NCLB) when it tested its limited
English proficient students in English only.
A
lower court concluded that the Board of Education was entitled
to deference regarding how to test limited English proficient
students and further that the NCLB did not require that
such students be tested in any
certain manner.
The
Appellate Court agreed with this rationale further noting
that, since more than 40 languages are
spoken in California
schools, the Board of Education would not have a rational
basis to test only certain students in their native language
but not others.
PRACTICAL
TIP: It
seems that the Court of Appeal in this case is implicitly
recognizing that the state Board of Education cannot
be required to provide standardized testing in each
student’s native languages so therefore it is not
required to test in any.
Employment Law
Stereotyping
Pregnant Employees Can be Costly.
A
California
company was found liable for pregnancy
discrimination and ordered to pay over $100,000.00 in back
pay, emotional distress damages and fines when it laid off
a pregnant employee because of concerns about her ability
to work safely.
The
female employee was hired as
a deckhand on a 70-foot yacht and was later promoted to
second captain. One month later
she advised her employer that she was pregnant. The
captain of the vessel did not believe that a pregnant woman
could work safely on a boat and not risk injury to herself
and her unborn child. Although he asked
the employee to provide a doctor’s release,
before she was able to do so she was laid off ostensibly
for budgetary considerations. Ultimately, the employer
admitted that he had laid off his pregnant second captain
because of concerns over her ability to work safely.
The
California Department of Fair Employment and Housing had
a relatively easy time concluding that pregnancy discrimination
had occurred.
PRACTICAL
TIP: Do
not apply blanket prohibitions against pregnant women performing
certain job functions, and instead approach each situation
on a case-by-case basis. There will of course be situations
where there are legitimate safety concerns regarding pregnant
employees. In those situations, we recommend creating
a list of essential job functions as well as a list of potential
hazards and then request the employee to secure a medical
release or verification that she is able to work in that
environment.
The
List of Illegal Interview Questions is Long and Varied
Although
we have reported on this before, it bears repeating that
there are a whole host of illegal interview topics and questions.
Some may be obvious but others not so much. For example,
all employers should know by now that it is illegal to ask
about a person’s race, ethnicity or national origin,
and this will include questions about citizenship, length
of time of residence in the United
States or inquiries about
the prospective employee’s native tongue.
You
should also know that questions geared to determine the
age of an applicant, such as “when did you graduate
from high school” or “how many years do you
intend to work before you retire?” are off limits.
Other
obvious trouble spots concern questions regarding children
or the intention to have children as well as general marital
status.
Less
obvious, perhaps, are prohibitions against questions
which could be construed as designed to determine
the applicant’s religion, sexual orientation or political
affiliation. In addition, employers are very limited
regarding questions that touch upon the issues of disability,
military background and general criminal background.
We
have put together quite a nice list of legal and illegal
questions arranged by topic. If you are interested
in receiving a copy, please send your request to rottaiano@lynberg.com.
PRACTICAL
TIP: One
of the best ways to avoid a claim of unlawful stereotyping
is to be certain that you pose the same questions to all
of your job applicants. Before beginning the interview
process, develop a plan which
should include a list of the questions you intend to ask
as well as how you will phrase those questions.
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