Let Claims Bypass Panel, Court Urged

The California Supreme Court was urged Friday to allow job-bias claimants to bypass the state’s civil rights agency and file suit directly in court, where they could obtain far larger damage awards.

Attorneys for two women who charged that their employer demanded sexual favors as the price of keeping their jobs told the justices that state prohibitions against employment discrimination permit such suits to deter bias.

“The highest expression of public policy in California is through its Constitution . . . and the public policy of this state is against discrimination,” David C. Anton, a Berkeley lawyer representing civil rights groups, said during a court hearing in Los Angeles.

Attorneys for employers countered that workers charging bias should be required to resort first to the state Fair Employment and Housing Department, the agency established to review such claims, offer mediation and conciliation and promote settlements. Those cases can result only in awards by the Fair Employment and Housing Commission of back pay, reinstatement and compensatory damages--although the commission’s authority to award such damages is under challenge.

Steven G. Drapkin of Los Angeles, a lawyer for the Merchants and Manufacturers Assn., said that sending bias claims to the agency promoted resolution of disputes without resorting to the courts. “It gives employers who screw up an opportunity to make ameliorative efforts,” Drapkin said.

The case has drawn considerable attention from employers, who have expressed concern that allowing claimants to bypass the agency will result in a flurry of additional lawsuits seeking big punitive damage awards. One study showed that California juries sided with employees in 70% of the cases, granting an average award of $652,100 in one five-year period.

Employment-rights advocates reply that the threat of such punishment is the best deterrent to wrongful acts by employers.

The case arose from a lawsuit by Emma Rojo and Teresa Maloney charging that they suffered emotional distress from sexual harassment and improper demands by Dr. Irwin H. Kliger of Los Angeles, their former employer. Kliger has denied the allegations.

A Los Angeles Superior Court judge dismissed the case because Rojo and Maloney had failed to go first to the fair employment department. But a state Court of Appeal reinstated the suit, saying the state Constitution allowed civil rights claims to be filed directly in court.

The appellate panel called the agency’s process “largely ineffectual,” noting that the overwhelming majority of the 8,000 cases filed annually were dropped, settled or otherwise resolved without a formal hearing. Forcing claimants to go through the department would “diminish, rather than enhance” their remedies for discrimination, the panel said.