In 1972, Ruth Rosenfeld began working at the Abraham Joshua Heschel Day School, a private Jewish elementary and middle school. Rosenfeld taught Hebrew/Judaic Studies full time (approximately 25 hours per week) to third and fourth graders. Heschel is an affiliate of the Bureau of Jewish Education (BJE). Pursuant to the BJE's Code of Personnel Practices, Rosenfeld was a tenured teacher.
Enrollment at Heschel declined from 455 to 440 students in the 2005-2006 school year, which led to a decrease in the need for teachers. Until 2005, Rosenfeld was paid for five hours per week to help coordinate a program for middle school students that involved a two-week trip to Israel. Due to dissatisfaction with Rosenfeld's performance on the trip, including her poor rapport with the middle school students, Betty Winn, the head of the school, assigned responsibility of the program to another teacher. Heschel renewed Rosenfeld's contract for the 2005-2006 year, but reduced her hours to 20 per week. Rosenfeld received a severance payment of $9,800 for the reduction in hours.
Enrollment for the 2006-2007 school year declined to 423 students. As a result, Heschel reduced Rosenfeld's hours from 20 to 15 hours per week. However, Heschel paid Rosenfeld for a 17-hour workweek so that it could maintain her health coverage.
Enrollment for the 2007-2008 school year further declined to 391 students. Winn notified Rosenfeld that she could only offer her 10 teaching hours per week, but that Rosenfeld would receive $14,658 for the hours reduction and would be notified if more hours became available. Rosenfeld accepted the offer in writing, but then notified Heschel by letter, three days before the school year started, that she was being "forced to resign her employment" because her work environment had become intolerable. The letter also alleged that Rosenfeld's age (60) was the motivating reason for the demotion and constructive discharge. Shortly after Heschel received the letter, five additional teaching hours became available. Heschel rushed to hire a new teacher, a woman slightly younger than Rosenfeld, who wound up teaching 15 hours per week.
Rosenfeld filed an age discrimination charge with the DFEH, and then filed suit against Heschel alleging age discrimination, constructive wrongful termination, failure to prevent discrimination, constructive wrongful termination in violation of public policy, and intentional and negligent infliction of emotional distress. The case proceeded to trial. After trial started but before opening statements, Rosenfeld submitted a trial brief indicating that she would pursue a disparate impact theory of discrimination in addition to her disparate treatment theory. She posited that Winn wanted to change the school culture to one of best practices, which was having a disproportionate effect on older teachers. Heschel objected on the basis that Rosenfeld's pleadings, discovery responses, and case management conference statements never mentioned a disparate impact theory, and that it would be prejudiced if Rosenfeld were permitted to pursue a new theory at trial. The trial court agreed with Heschel and precluded Rosenfeld from pursuing a disparate impact theory of discrimination at trial. After trial concluded, the jury returned a verdict in favor of Heschel, specifically finding that Rosenfeld's age was not a motivating reason for the reduction in her working hours. Rosenfeld appealed, and the Court of Appeal affirmed.
Rosenfeld argued that the trial court erred by not allowing her to pursue a disparate impact claim at trial. With a disparate treatment claim, a plaintiff alleges that her employer treated her differently than others because of her race, sex, age, or other protected characteristic. In other words, disparate treatment is intentional discrimination. With a disparate impact claim, a plaintiff does not have to prove discriminatory motive. Rather, she alleges that an employer's facially neutral employer practice or policy, which bears no manifest relationship to job requirements, had a disproportionate adverse effect on members of her protected class. If the plaintiff can show a disparate impact, the employer must demonstrate that any given requirement had a manifest relationship to the employment in question. If the employer makes this showing, the plaintiff must prove that the practice was pretext for discrimination.
Relying on federal case law, the Court of Appeal concluded that disparate treatment and disparate impact claims are different theories of liability with different elements, and must be specifically alleged. A disparate impact claim requires an employer to present entirely different defenses than it would in a disparate treatment claim, and therefore an employer is prejudiced if it does not learn of the claim until after the close of discovery.
Here, Rosenfeld's pleadings only mentioned intentional discrimination, not disparate impact. While Rosenfeld requested a continuance of Heschel's motion for summary judgment so that she could obtain the discovery necessary for her statistical expert, that was insufficient to put Heschel on notice of her disparate impact claim because statistical evidence can be used to show either disparate impact or disparate treatment discrimination. The Court of Appeal held that the trial court properly precluded Rosenfeld from pursuing a disparate impact claim at trial.
Rosenfeld claimed that the trial court erred by refusing to use her proposed jury instruction regarding pretext: "Rejection of the defendant's proffered reasons for reduction of Ruth Rosenfeld's hours permit you to infer the ultimate fact of age discrimination." The Court of Appeal held that the trial court properly rejected this instruction because it was an incorrect statement of the law. While a jury's finding that an employer lied about its reasons may buttress a circumstantial case of discrimination, it is improper to infer that an employer intentionally discriminated solely from evidence that an employer lied.
Therefore, the Court of Appeal affirmed the judgment in favor of Heschel.
Disparate treatment claims, also known as intentional discrimination claims, tend to be more common than disparate impact claims. If faced with a disparate impact claim, an employer may be able to defeat the claim by showing that the challenged policy or practice is job-related and consistent with business necessity. This defense, called the business necessity defense, is not a defense against disparate treatment claims.
Indeed, Heschel did not plead the business necessity defense because it believed, on the basis of Rosenfeld's pleadings, that she was only alleging intentional discrimination. This fact helped illustrate for the Court why disparate impact and disparate treatment claims must be specifically alleged. Not only had Heschel not pleaded the defense, but it had not conducted discovery regarding the practice, and would not have been prepared to present evidence at trial that it was job-related and consistent with business necessity. Therefore, to prevent this prejudice, the Court affirmed the trial court's decision to preclude Rosenfeld from proceeding on a disparate impact theory.
Rosenfeld v. Abraham Joshua Heschel Day School, Inc. (2014) __ Cal.App.4th __ [2014 WL 2200910].