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  • Writer's pictureJana Moser


DISCRIMINATION IN HIRING Under California’s Fair Employment and Housing Act (the “FEHA”), it is unlawful for an employer to engage in adverse employment practices against a person on the basis of numerous protected characteristics. The range of protected characteristics is extensive and includes race, religion, disability, and sex or gender, among others. While it’s common knowledge that discrimination is prohibited in an employer’s decision to terminate someone, less well known is California’s prohibition on discrimination in hiring. As California Government Code section 12940 provides, “It is an unlawful employment practice . . . For an employer . . . to refuse to hire or employ the person” on the basis of any protected characteristic. To prove discriminatory hiring practices at the summary judgment stage, California employees have generally been required to prove four elements: (1) that she was a member of a protected class, (2) that she was qualified for the position she sought, (3) that she suffered an adverse employment action, such as not being hired, and (4) some other circumstance suggesting discriminatory motive, such as the position remaining open to applicants. In failure to hire cases, the plaintiff is frequently also required to show that she applied for the job, thereby establishing that the employer knew the plaintiff was seeking a job. In a recent California Court of Appeal decision, the court considered a novel question: Whether an employer can be liable for discrimination despite thwarting an applicant from applying to a job by falsely telling her that no position is available. See Abed v. Western Dental Services, Inc., 23 Cal. App. 5th 726 (2018). ABED V. WESTERN DENTAL SERVICES, INC. THE FACTS In Abed, the defendant, Western Dental, was an employer that operated dental offices and clinics throughout California. Western Dental accepted student externs from schools with dental assistant programs and, if student externs wanted to be considered for full-time employment as dental assistants, they were required to submit a written application, undergo a background check, and be interviewed. The plaintiff, Ada Abed, began working for Western Dental in its Napa office as an unpaid student extern on May 18, 2015. Although Abed was pregnant at that time, she did not disclose this to anyone at Western Dental. Her pregnancy was later unwittingly revealed when one of her supervisors saw prenatal vitamins in her purse and discussed her pregnancy with the managing dentist. Prior to Abed Western Dental’s Napa office, Western Dental posted a job opening for a dental assistant in its Napa office on its website in March 2015. However, when Abed asked her supervisor about whether there were any openings for dental assistants in the Napa office, the supervisor was instructed to tell Abed that none were available. Because she was told no openings were available, Abed did not apply to the open position. Less than a week after Abed’s externship ended, Western Dental hired a different extern and later hired her as a dental assistant. THE TRIAL COURT Abed filed a lawsuit against Western Dental in September 2015, bringing a claim for discrimination under the FEHA. Western Dental moved for summary judgment, arguing that one of the elements Abed had to prove—that she had applied for the dental assistant position—was not met. The trial court entered judgment in favor of Western Dental. In so ruling, the trial court properly recognized that Abed’s failure to apply to the dental assistant position did not automatically defeat her FEHA claim. Still, the trial court concluded that Abed failed to establish her discrimination claim because she could not establish that filing an application would have been futile under the futile-gesture doctrine—in other words, that it would have been futile for Abed to apply at all. THE COURT OF APPEAL The court of appeal rejected the trial court’s analysis, noting that the issue was not whether it would have been futile for Abed to apply, but rather whether Western Dental caused her not to apply by falsely telling her that no position was available. The court also rejected Western Dental’s argument that Abed had to show she had applied to an open position, stating, “Employers who lie about the existence of open positions are not immune from liability under the FEHA simply because they are effective in keeping protected persons from applying.” Abed, 23 Cal. App. 5th at 741. LOOKING FORWARD Abed is an important decision protecting employees’ right to be free from discrimination in the workplace. The decision shows that California courts will not be pigeonholed to traditional elements of a discrimination case at the summary judgment stage and instead “must be sensitive to the myriad of ways an inference of discrimination can be created.” Abed, 23 Cal. App. 5th at 741 (internal ellipses and brackets omitted).

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