Most of us are aware that Labor Code section 132a prohibits discrimination against workers who are injured in the course and scope of their employment. In years past the burden of proof to establish a prima facie case under Labor Code section 132a required the applicant to show detrimental action following an industrial injury. However subsequent to the Lauher case, 68 CCC 831, and such cases as Gelson’s　Market, 74　CCC　1313, which interpreted and applies Lauher, applicants have an additional burden in order to establish a prima facie case under Labor Code section 132a. The applicant must now also establish that the employer treated the applicant differently then it would have treated a non-industrially injured employee.

In Gelson’s Market the Court of Appeal relied on Lauher to find the applicant had failed to establish a prima facie case in terms of Labor Code section 132a. In Gelson’s Market the employer failed to return the applicant back to work despite two reports from the med-legal evaluator stating that the applicant could return back to work. The employer only returned the applicant back to work after the deposition of the med-legal evaluator was taken and testimony elicited confirmed the applicant could perform his usual and customary work.

The court in Gelson’s Market noted that the applicant made no showing that the employer would have returned to work a non-industrially injured employee who had presented the same type of reports releasing the applicant back to work. The applicant made no showing the employer treated him differently or disadvantageously because of the nature of his industrial injury as compared to how the employer would have treated a non-industrially injured employee. Thus the applicant failed to make a prima facie case of discrimination in violation of Labor Code section 132a and thus did not shift the burden to the employer to establish an affirmative defense.

In that regard, at minimum, in order for an applicant or an injured worker to establish a prima　facie case in Labor Code section 132a the applicant or worker needs to show the following:

1. The employee suffered an industrial injury;
2. The employer caused the employee to suffer some detrimental consequences as a result of that injury;
3. The employer singled-out the employee for disadvantageous treatment because of the injury. (The industrially-injured worker was somehow treated differently then non-industrially-injured workers.)

Based on Lauher and Gelson’s Market, if the applicant fails to meet those initial burdens, the applicant’s claim for Labor Code 132a penalties should fail. As such, when considering the merits of a Labor Code 132a petition case, consider the requirements under Lauher and Gelson’s Market. It is a difficult standard for an applicant to meet. And if he or she does meet it, then affirmative defense should be considered. But that’s for a future article.