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Alleged Discriminatory Hiring Practices at CBS News Stations in Los Angeles Deemed to be Protected Activity under California’s Anti-SLAPP Statute

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Stephen L. RaucherA California Court of Appeal recently decided that CBS’s decision to hire a young, attractive woman as opposed to an older man as a weather anchor constitutes protected free speech.  Hunter v. CBS Broadcasting, Inc., 2013 Cal. App. LEXIS 997 (B244832) (Nov. 18, 2013).  Kyle Hunter filed an employment discrimination complaint in March 2012 against two local CBS television stations alleging that they had repeatedly shunned him for various weather anchor positions because of his age and gender.  Hunter claimed that CBS had a plan to turn prime time weather broadcasting over to younger attractive females and engaged in discriminatory practices in their employment decisions.

California’s anti-SLAPP statute requires a court to strike claims brought against an individual that arise from acts in furtherance of the right to free speech in connection with a public issue.   There is a two-step process to determine whether an anti-SLAPP motion should be granted.  First, the court decides whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity.  Second, if the defendant makes this showing, the court then decides whether the plaintiff has demonstrated a reasonable probability of prevailing at trial on the merits of its challenged causes of action.  However, if the defendant does not meet its burden on the first step, the court should deny the motion and does not need to address the second step.

In Hunter’s case, the trial court held that CBS did not make the showing under the first step.  Thus, the trial court concluded that CBS’s hiring decision did not arise from protected activity.  The Court of Appeal disagreed, noting that the labeling of the plaintiff’s claim as a case about employment discrimination is not definitive and that courts must examine the principal thrust or gravamen of the cause of action.  In other words, courts must distinguish between the acts underlying a plaintiff’s cause of action and the claimed illegitimacy of those acts.

In reversing the trial court, the Court equated CBS’s selections of its weather anchors to “casting decisions,” which are a form of protected activity.  The Court of Appeal distinguished two discrimination cases cited by Hunter where an anti-SLAPP motion was denied.   In those cases, the alleged protected activity was incidental to the discrimination causes of action, whereas in Hunter’s case, it was the very conduct on which the claims were based – the gravamen of the cause of action.  The Court further stated that even if the act of hiring a weather anchor by itself does not qualify as an exercise of free speech (a question the Court refrained from deciding), California’s anti-SLAPP statute also extends to conduct undertaken “in furtherance” of constitutionally-protected activities.  The Court reasoned that hiring a weather anchor was at least an act in furtherance of the exercise of protected activities under the anti-SLAPP statute and Hunter did not present any argument to the contrary.

The Court of Appeal remanded the case to the trial court to decide the second part of the anti-SLAPP test – whether the plaintiff can demonstrate a reasonable probability of prevailing at trial on the merits of its challenged cause of action.  Those proceedings also promise to be interesting.  Is a news station permitted to discriminate on the basis of looks? Gender?  Age?

As they say on the news, stay tuned . . .

Unpredictability in the Law Surrounding Employer Liability for Torts Committed by Employees Driving to and from Work

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Stephen L. RaucherIn the span of two weeks, two cases involving the doctrine of respondeat superior were decided in California resulting in opposite outcomes.  Under the legal theory of respondeat superior, employers are vicariously liable for the tortious acts committed by employees during the course and scope of employment if the acts could reasonably be foreseen by the employer.  Unlike the test for foreseeability in negligence, an event is foreseeable in the respondeat superior context if it is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.

Various rules have developed that either limit or eliminate an employer’s liability, including the “going and coming” rule.  Under this rule, an employer is exempt from liability for tortious acts committed by its employees while on their way to and from work because employees are said to be outside of the course and scope of employment during their daily commute.  An exception to the going and coming rule arises where the commute involves an incidental benefit to the employer, which is not common to commute trips by ordinary members of the work force.

In Moradi v. Marsh USA Inc., 219 Cal. App. 4th 886 (2013), decided on September 17, 2013, the employer was held vicariously liable when its employee collided with a motorcycle after work when driving to buy frozen yogurt and attend a yoga class on her way home.  Judy Bamberger commuted to and from work in her personal vehicle on a daily basis.  As part of her job, she was also required to use her car to attend off-site meetings and seminars, to transport and/or meet with clients in other locations, and to make presentations from two to five times a week.  The court stated that under the required vehicle exception, the key inquiry is whether there is an incidental benefit derived by the employer.  Further, the court emphasized that acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal to oneself, do not take one outside of the scope of employment.  The court found that it was a required condition for Bamberger to use her vehicle and that it was not so unusual or startling that an employee might stop for yogurt and to take a yoga class as necessary for her comfort, convenience, health and welfare.

By contrast, in Halliburton Energy Services, Inc. v. Department of Transportation, 220 Cal. App. 4th 87 (2013), decided on October 1, 2013, the employer was not held vicariously liable when its employee went to meet his family to purchase a car in between shifts.  Troy Martinez had an assigned company pickup truck to drive as part of his job.  Martinez was assigned to work on an oil rig near Seal Beach for an estimated period of 2-3 weeks.  Martinez lived in Caliente, California, which is about 50 miles from Bakersfield.  After his shift at the oil rig, Martinez drove approximately 140 miles to Bakersfield to meet his family at a car dealership to purchase a car for his wife.  On the way back to Seal Beach, Martinez was involved in an accident.  The court reasoned that even if the incidental benefit exception applied, there were undisputed facts establishing that Martinez was engaged in purely personal business at the time of the accident, and was not acting within the scope of his employment for Halliburton to be held vicariously liable.  The court acknowledged that minor and foreseeable deviations from a direct commute are within the scope of employment, but that if it is purely personal and has no nexus to his employment, then there is no liability imposed on the employer.  The court held that the trip to Bakersfield, which was 50 miles from his home, was not foreseeable and was purely personal.

It is possible that confusion will arise regarding the doctrine of respondeat superior considering the very fine distinctions made between cases.  Although Halliburton can be distinguished from Moradi in that Martinez was not on his way home, but went to purchase a car 50 miles away from his home, it is still difficult to predict how the court will rule in these cases.  The Halliburton court strongly emphasized that there must be a nexus between the deviation and employment.  However, in Moradi, there was arguably no nexus between Bamberger’s trip to buy frozen yogurt and take a yoga class and her job.  The Moradi court, on the other hand, emphasized that acts necessary to the comfort, convenience, health, and welfare of the employee do not take that employee outside of the scope of employment.  Martinez’s trip between shifts to purchase a car with his family could potentially be necessary to his comfort, convenience, health and welfare.  Unless the California Supreme Court clarifies the respondeat superior doctrine, the factually intensive analysis will likely lead to more confusion and unpredictable results.  Both Halliburton and Moradi are good law in California.

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