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Irac for Rojo and Toland

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HROB 153 Employment Law
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Rojo and Toland IRAC
Curt Marchione
HROB 153 (Section 3)
May 19, 2015

HROB 153 Employment Law
-------------------------------------------------
Rojo and Toland IRAC
Curt Marchione
HROB 153 (Section 3)
May 19, 2015

Factual Summary of Rojo v. Kliger Rojo v. Kliger, 801 P.2d 373 (Cal. 1990) Plaintiffs Emma Rojo and Teresa Maloney were employed as assistants by defendants Erwin H. Kliger, a practicing physician, and Erwin H. Kliger, M.D., a medical corporation (hereafter referred to collectively as defendant). In August 1986, there was a complaint filed by the plaintiffs against the defendant. The plaintiff accused the defense of violating FEHA and “intentional infliction of emotional distress”.
The Plaintiffs alleged that during their employment the defendant subjected them to sexually harassing remarks and demands for sexual favors. These remarks resulted in the plaintiffs being forced to leave their employment.
Defense moved for summary judgment due to the fact that, “FEHA constituted plaintiffs' exclusive remedy and that plaintiffs had failed to exhaust their administrative remedies under the act.” Plaintiffs argued, “FEHA does not supplant other state law remedies, including common law claims, relating to discrimination in employment, and that pursuit of the administrative remedy is not a condition precedent to judicial relief.” The trial court granted defendant's motion and entered summary judgment in Defendant’s favor.
However, Court of Appeal reversed the judgment. They asserted that, “FEHA does not preempt or preclude other state law claims relating to employment discrimination.”

IRAC for Rojo v. Kliger
Issue
Review in this case was granted to determine the following: * Does FEHA provide the exclusive remedy for injuries arising from discrimination in employment? * Does the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) provide the exclusive remedy for injuries relating to sex discrimination in employment? * Must an employee exhaust the administrative remedies under the FEHA as a prerequisite to pursuing a civil action? * Does sexual discrimination in employment give rise to a claim of wrongful discharge in contravention of public policy?
Rule
* FEHA expressly disclaims any intent to repeal other state laws relating to employment discrimination. Subdivision (a) of section 12993 provides: "The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof. Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age." * Although the common law theories do not expressly "relate to discrimination," they are a standard part of a plaintiff's discrimination case. * Sexual discrimination in employment gives rise to a claim of wrongful discharge if someone in a similar field would feel compelled to quit. * An employee may sue for wrongful termination if they were fired based on the employee’s constitutionally, statutorily, or regulatory protected status.
Analysis
The court concluded that the defendant's discharges of plaintiffs, on the grounds alleged, contravened a fundamental, substantial public policy embodied in the state Constitution, a public policy, by whatever measure, that was " 'firmly established' " (Foley, supra, 47 Cal.3d at pp. 668, 670, fn. 11) at the time plaintiffs were discharged. Consequently, plaintiffs were entitled to plead a cause of action for wrongful discharge in violation of public policy.
The court rejected the defendant's argument that Tameny claims should be limited to situations where, the employer "coerces" an employee to commit an act that violates public policy, or "restrains" an employee from exercising a fundamental right, privilege or obligation.
Conclusion
In any event, the plaintiffs' allegations satisfy defendant's own criteria. Plaintiffs assert that they were terminated for refusing to engage in conduct that violated fundamental public policy, i.e. nonconsensual sexual acts. (See, e.g., Pen. Code, § 243.4.) They also assert that they were discharged for attempting to exercise a fundamental right, the right to be free from sexual assault and harassment. Under either theory, plaintiffs should have been allowed to plead a cause of action for wrongful discharge in violation of public policy.
My opinion I agree with the courts ruling. In essence they are saying that the plaintiffs were correct in assuming that they should not be wrongfully terminated for choosing not to participate in non-consensual sex. My freshman philosophy professor asked the class a question on the first day. Is there a golden rule that can be applied to all people, in any culture? I believe I have a golden rule that meets this criteria: “Live your life as you want, provided that the way you live it does not inhibit anyone else’s ability to do the same.” The plaintiffs felt the defense was asking them to violate themselves. The court was correct in it’s ruling, and the plaintiffs were justified in not wanting to work somewhere that asks them to violate their rights.
Factual Summary of Toland v. Sunland Housing Group Inc.

Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 74 Cal.Rptr.2d 878; 955 P.2d 504
Timothy Toland was working for framing contractor in December 1992. The company he worked for was CLP Construction, 881 Inc. (hereafter referred to as CLP). While helping other CLP employees raise a large and heavy framed wall, Toland was injured. The wall fell on him and resulted in injury. The project's owner and general contractor was Sunland Housing Group, Inc. (hereafter referred to as Sunland).
Toland sought recovery from his employer CLP under the Workers' Compensation Act. He also sued Sunland, alleging that, “raising the wall created a peculiar risk of injury for which Sunland should have required subcontractor CLP to take special precautions”.
Sunland moved for summary judgment in the trial court, asserting that Toland's action was barred under the courts decision in Privette, supra, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721. Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor's negligent performance of the work causes injuries to others. Toland argued that, “Privette had eliminated peculiar risk liability for employees only in actions based on section 416 of the Restatement Second of Torts (hiring person liable for contractor's negligence in spite of providing that the contractor take special precautions), but that Privette had no effect on an action such as his, which was brought under section 413 (hiring person who fails to provide for special precautions liable for contractor's negligence).”
IRAC for Toland v. Sunland Housing Group Inc.
Issue
This case determined the following: * May a subcontractor's employee sue the general contractor for on-the-job injuries, asserting that Privette did not bar recovery under section 413? * Does Privette bar recovery under section 413 as well as section 416? * Was there a critical inquiry? i.e. "whether the work for which the contractor was hired involves a risk that is 'peculiar to the work to be done,' arising either from the nature or the location of the work and ' "against which a reasonable person would recognize the necessity of taking special precautions."
Rule
The Restatement Second of Torts
The Restatement Second of Torts, appears in chapter 15 and is entitled "Liability of an Employer of an Independent Contractor." Its first section states the general rule; "the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants." (Rest.2d Torts, § 409, p. 370.) Sections 413 and 416 describe exceptions to this general rule.
Section 413 reads: "One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer (a) fails to provide in the contract that the contractor shall take such precautions, or (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions." (Rest.2d Torts, § 413.) Because section 413 rests the liability of the hiring person on his or her omission to provide for special precautions in the contract or in some other manner, it is sometimes described as a rule of "direct liability." (See Aceves v. Regal Pale Brewing Co., supra, 24 Cal.3d 502, 509; Griesel v. Dart Industries, Inc., supra, 23 Cal.3d 578, 585-586; see also Kelleher v. Empresa Hondurena de Vapores, S.A. (1976) 57 Cal.App.3d 52, 62 [129 Cal.Rptr. 32].) [18 Cal.4th 260]
Section 416 provides: "One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise." (Rest.2d Torts, § 416.) As the introductory note to this section explains, "the [hiring person] is under a duty which he is not free to delegate to the contractor." (Rest.2d Torts, ch. 15, topic 2, Introductory Note, p. 394; see also Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 255 [66 Cal.Rptr. 20, 437 P.2d 508] [describing section 416 as imposing a "nondelegable duty to exercise due care"].)
Analysis
The court believed dissenting opinion would effectively deprive general contractors of a right available to any other hiring person: i.e. the right to delegate to independent contractors the responsibility of ensuring the safety of their own workers. In effect, the concurring and dissenting opinion's proposed rule would impose liability on general contractors simply for "having written a certain kind of contract, a contract found too vague on one point." (Nelson v. United States (9th Cir. 1980) 639 F.2d 469, 477.)
Ultimately, the court concluded that employees of independent contractors couldn’t recover under section 416 or section 413 of the Restatement Second of Torts. As was concluded in Privette, supra, 5 Cal.4th 689, it is illogical and unfair that a landowner or other person who hires an independent contractor should have greater liability for the independent contractor's negligence towards the contractor's employees than the independent contractor whose liability is limited to providing workers' compensation coverage.
Conclusion
This case correctly held that the decision in Privette, supra, 5 Cal.4th 689, necessarily bars an employee of an independent contractor from relying on the doctrine of peculiar risk to seek recovery under either section 413 or section 416 of the Restatement Second of Torts.
Earlier court decisions
Rojo v. Kliger
In Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 [254 Cal.Rptr. 211, 765 P.2d 373], the court reaffirmed the viability of a tort action where an employer's discharge of an employee contravenes the dictates of fundamental public policy.
Toland v. Sunland
In Privette v. Superior Court (1993) 5 Cal.4th 689, 694, 21 Cal.Rptr.2d 72, 854 P.2d 721 (Privette), courts created the peculiar risk doctrine in the belief that "as between two parties innocent of any personal wrongdoing — the person who contracted for the work and the hapless victim of the contractor's negligence — the risk of loss occasioned by the contracted work was more fairly allocated to the person for whose benefit the job was undertaken."
Compare/ Contrast I believe that Rojo v. Kliger had a larger impact on employment law. The case established the idea that an employees may sue for wrongful termination if they were fired based on the employee’s constitutionally, statutorily, or regulatory protected status. It means that there are certain classified types of discrimination where an employer can be liable for wrongful termination. It protects employees from a multitude of violations in the workplace.

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