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Irac For Rojo And Toland Essay

2000 words - 8 pages

HROB 153 Employment Law
-------------------------------------------------
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 ...view middle of the document...

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...

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