From The Sacramento Bee, 12/02/03

Employees need not use all steps before filing suit, top court rules

By Melanie Payne

SACRAMENTO -- The California Supreme Court ruled Monday that public employees do not have to exhaust their employer's grievance process before taking a discrimination case to court.

Employee-rights supporters hailed the decision as a step forward, but a dissenting justice said it will increase the number of costly and burdensome litigations.

State law requires a public employee in California who alleged discrimination to do two things before suing his employer in court: file a complaint with the Fair Employment and Housing Authority, and complete all of the steps set by the employer to resolve discrimination complaints.

Steve Schifando, a parks and recreation employee for the city of Los Angeles, completed the first requirement, but not the latter, before suing the city.

Schifando claimed he was discriminated against because of his disabling hypertension.

A lower court threw out his discrimination lawsuit because he did not exhaust the city's process for resolving discrimination claims.

In a 5-2 decision, the state Supreme Court overturned the 2nd District Court of Appeal, ruling that Schifando can continue with his lawsuit against the city.

"I think the impact will be to encourage more litigation," said Arlene Prater, a partner with Best Best & Krieger in Riverside, who filed a friend-of-the-court brief on behalf of 61 California cities.

"It takes away the potential ability for employers to resolve things at the lowest level and to be able to do that before it turns into litigation."

But Irma Herrara of Equal Rights Advocates in San Francisco, which also filed a friend-of-the-court brief, said that often an employer's remedies are lengthy and cumbersome.

"Employees are required to jump through all these hoops, and that's not what the law intended," Herrara said.
Most employees will continue to resolve their complaints using the employers' administrative processes, she predicted.

"Most people are not sue-happy," Herrara said.

But she said employees at state universities, agencies or local governments who find their complaints are "not getting anywhere" can go to court.