In Rosenfeld v. Abraham Joshua Heschel Day School, Corporation., the 2nd Appellate District held that the complaintant whose pleadings alleged intentional employment discrimination couldn’t assert a disparate impact theory the very first time at trial.

The situation highlights the excellence between “disparate treatment” and “disparate impact” theories under California’s Fair Employment and Housing Act (“FEHA”). Disparate treatment methods are intentional discrimination against a person on prohibited grounds, for example race, sex or any other protected category.

Within disparate impact theory, a complaintant isn’t needed to demonstrate intentional discrimination. A disparate impact exist where an employer’s facially neutral policy includes a disproportionate adverse effect on a protected class.

Rosenfeld would be a teacher in a private Jewish grade school in Northridge, California. She resigned in August of 2007 at age 60 and then sued the college for age discrimination.

In her own pleadings, Rosenfeld alleged the school progressively reduced her hrs for an intolerable level “in an attempt to pressure her out due to her age.” The college countered the decrease in Rosenfeld’s hrs was as a result of loss of enrollment.

Rosenfeld’s pleadings exclusively alleged age discrimination within theory of disparate treatment. Shortly before trial, however, Rosenfeld filed an effort brief alleging disparate impact the very first time. The trial court precluded her from quarrelling disparate impact, proclaiming that Rosenfeld couldn’t “raise a totally different theory around the eve of trial.”

The jury ultimately came back a defense verdict. Rosenfeld unsuccessfully moved for any new trial after which appealed, amongst other things, the trial court’s decision to disallow the disparate impact claim.

On appeal, Rosenfeld contended that they wasn’t needed to particularly plead disparate impact. The college was sufficiently on notice from the disparate impact theory, Rosenfeld contended, because she’d retained a record expert and suggested a disparate impact jury instruction.

A legal court rejected this argument. Affirming the trial court’s ruling, a legal court noting that Rosenfeld’s pleadings, discovery responses and situation management conference statements never pointed out a disparate impact theory.

Thus, Rosenfeld unsuccessful to provide timely notice to [the college] that they meant to pursue a disparate impact theory at trial.”

The Rosenfeld situation makes obvious that the employment discrimination complaintant must clearly allege a disparate impact if they really wants to proceed under that theory. It’s not enough to say the disparate impact theory is implicit within the intentional discrimination claims. This can be a positive development for employers.