[COLUMN] Defending discriminated co-workers is protected activity

IN 2016, Robert Fernandez, then 70 years old and disabled due to diabetes, was hired by Puente Hills Chrysler Dodge Jeep Ram. Even though he had trouble walking and standing for long periods, his employer accommodated his disability. He excelled at his job and was a top producing assistant sales manager.

In August 2018, the employer hired a new general manager, 33 year-old Josh Story. Story removed Fernandez’s accommodations and transferred him to a job that was physically demanding. He then chose a much younger man (whom he praised as “much faster and more mobile”) to take over Fernandez’s old position. When Fernandez’s appeal to be reinstated to his former position was denied, he resigned.

Amanullah Tahir was a sales manager and Fernandez’s supervisor. Tahir opposed the discrimination against Fernandez and complained on several occasions to management about the inappropriate comments made by managers about Fernandez’s age and physical condition. Tahir argued with Story about his plan to transfer Fernandez, and later questioned why Fernandez was removed from his assistant manager position.  When Story saw Tahir assist Fernandez by taking a photograph of his car sales license, there was a hostile confrontation and Tahir was fired.

Fernandez sued the employer alleging constructive termination based on age and disability discrimination, among others. Tahir filed a separate complaint alleging wrongful termination and illegal retaliation as a result of her opposition to the employer’s discriminatory treatment of Fernandez. Their two cases were consolidated, and the parties agreed to arbitration of their claims.

Under California law an employer may not terminate an employee based on age or disability. Disability includes physical disability, mental disability or a medical condition. If a disabled employee is unable to perform work duties, the employer must engage in a timely interactive process. This means that the employer must communicate with the employee to determine if reasonable accommodation is needed for them keep working.

Fernandez rebutted the employer’s claim that he was transferred to another position as a result of an “interactive process.” Many witnesses testified that Story publicly announced that Fernandez was being fired because “he’s just too old,” that “he’s going to fall and hurt himself, break something, die”  and that Story didn’t “want [Fernandez] dying on the showroom floor.” All these were shown to be evidence of animus against Fernandez’s age and disability, making the employer liable for age and disability discrimination.

Under California law, an employer may not terminate an employee for retaliatory reasons. Doing so may give rise to a wrongful termination claim. The law also protects employees who report of a suspected violation within the organization.  The employer is also prohibited from retaliating against an employee who refuses to participate in, or opposes, activities that violate the law.

By opposing the employer’s discrimination against Fernandez, Tahir was clearly engaged in a protected activity. By being terminated, Tahir was also subjected to an adverse employment action by the employer. Tahir’s opposition of the employer’s conduct caused the employer to retaliate against her by firing her. Tahir’s situation fits the classic unlawful termination scenario.

The Daily Journal, reporting the foregoing facts, also reported that the Arbitrator awarded Fernandez $1,071,452 and Tahir for economic and non-economic damages, waiting time penalties, and attorney’s fees and costs.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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