California Supreme Court alters how bias cases will be handled

Even if discrimination plays a role in a worker's firing, an employer will not be liable for back pay or other compensation if the employee would have been fired anyway for poor performance, the California Supreme Court decided Thursday.

The 6-0 ruling, with one justice recused, is likely to change the way most discrimination cases are handled in California, lawyers in the case said.

In the past, employees could receive compensation, including back pay and damages, and win reinstatement if they could prove that discrimination was "a motivating factor" in a firing.

Now, employees will have to show that bias was a substantial motive, and the employer will then get the chance to argue that performance alone would have resulted in the worker's termination.

The widely anticipated ruling was not a complete victory for employers, however. The court said employers would still have to pay a litigant's attorney fees if a jury finds that illegal bias was involved. A judge also would have the option of issuing an injunction ordering the company to end discrimination.

"There is no question that an employment decision motivated in substantial part by discrimination inflicts dignitary harm on the affected individual," Justice Goodwin Liu wrote for the court, "even if the employer would have made the same decision in the absence of discrimination."

The decision overturned a jury award to a Santa Monica bus driver who was fired after revealing she was pregnant.

The city's bus service insisted that she would have been fired regardless of her pregnancy because she had two accidents and failed twice to report to work on schedule. A jury awarded her about $178,000, mostly for mental suffering. Her sex discrimination complaint could be retried, but the jury would be instructed under the new rule.

Charlotte Fishman, an attorney for a lawyer group that represents workers in employment litigation, said the ruling would make it harder for workers to prevail in discrimination cases.

"This is kind of a surprise, and not a good one," Fishman said.

Paul W. Cane, who represented employer groups in the case, called the decision "a mixed bag."

"If the plaintiff lawyer can prove discrimination was a substantial motivating reason, they are going to put in large, attorney-fee bills even if their clients get nothing," Cane said.

David M. deRubertis, who represented the employee in the case, said he was disappointed that the court did not preserve damages for emotional distress and punitive damages, but added that the ruling would not affect which lawsuits he files.

maura.dolan@latimes.com

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Japan Spends Heavily to Keep Whaling Industry Afloat, Report Says

TOKYO — A wildlife conservation group said in a report on Wednesday that Japan has been propping up its whaling industry with nearly $400 million in tax money in recent years, stepping up subsidies even as consumption of whale meat here has slumped.

The report, compiled by the International Fund for Animal Welfare, in Yarmouth Port, Mass., challenges assertions by the Japanese government that whaling is a tradition with wide support among Japanese consumers.

Instead, government figures tallied in the report paint a picture of a struggling industry employing fewer than 1,000 people and dependent on public handouts, including money meant for reconstruction after the devastating earthquake and tsunami of March 2011.

Most Japanese consumers have turned away from whale meat. The industry shipped just 5,000 tons in 2011, compared with 233,000 tons at the peak in 1962, according to data from the Ministry of Agriculture, Forestry and Fisheries. Demand this year is so low that the industry has cut its planned shipments by half, to 2,400 tons.

“Whaling is unprofitable, and survives only with substantial subsidies, something cultural and nationalist arguments for whaling obscure,” said Patrick Ramage, the director of the animal welfare fund’s whale program. He said the country would be better off economically and ecologically if it promoted whale-watching tourism instead of hunting whales.

Japan’s Fisheries Agency declined to comment on the report, saying it had not yet studied its contents.

But an official, speaking on the condition of anonymity, said there was “nothing wrong with these subsidies, which fund an important program,” though it was “not the government’s responsibility to make whaling economically viable.”

A world moratorium on commercial whaling took effect in 1986, but Japan has taken advantage of an exception allowing whaling for research purposes to continue hunting, though environmental activists who chase whaling boats have made those hunts increasingly difficult. Japan has captured and killed more than 14,000 whales since the moratorium began.

The meat from the whales is sold off as “byproducts” of research, and it makes its way to supermarkets, restaurants and even school lunches. A government Web site says the most popular whale dishes are fried whale, whale sashimi and medium-rare whale steak.

According to figures from the Institute of Cetacean Research, the nonprofit organization set up to run the whaling program, income from whale meat has failed to cover the costs of whaling for the past five years. So subsidies have been increased, and some disaster aid has been diverted to the industry, prompting a public outcry.

The dire financial picture prompted the government to announce a plan last year to cut costs by reducing the annual catch and to sell more whale meat directly to schools for lunches. But experts doubt that those measures will make the whaling industry self-sufficient again. 

“The Japanese government has desperately defended whaling for years, but the question has increasingly become: for what?” said Yusuke Saskata, a professor of environmental economics at Kinki University in Osaka. “Supporting whaling culture is one thing, but maintaining whaling at this scale makes no sense.”

Hisako Ueno contributed research.

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American Idol: It's a Guys' Night in Hollywood

TV Watch

American Idol

By Jamie Bufalino

02/06/2013 at 11:00 PM EST

From left: Randy Jackson, Mariah Carey, Ryan Seacrest, Nicki Minaj and Keith Urban

George Holz/FOX

Caution: Contains spoilers!

"It does feel a bit like The Hunger Games," said Keith Urban, ramping up the drama as American Idol kicked off the first day of Hollywood Week. Although producers didn't unleash any tracker jackers on the contestants, they did throw in a couple unexpected twists: This season the week started off as a guys-only competition (the girls arrive in Hollywood next week), and after surviving a round of sudden death solo sing-offs, contestants would then be put into groups from which they couldn't escape.

During the solo round, the standouts included two memorable contestants from the nationwide auditions. First up, Navy man Micah Johnson, who developed a speech impediment after suffering through a botched surgery to remove his tonsils. After a rousing rendition of Elton John's "Bennie and the Jets," Johnson was the first to get the green light to the next round.

Joining him soon after was Cuban-American Lazaro Arbos, a 21-year-old ice cream scooper from Naples, Fla., who speaks with a severe stutter but sings with ease. Although Arbos admitted to being both "scared" and "petrified," he quickly won the judges over – Nicki Minaj made her fingers into a heart-shape while he sang – with his take on the Robbie Williams hit, "Angels."

When it came time to form groups of four, the Idol producers threw a few more curveballs – such as pairing a couple of country crooners with two flamboyant (think glitter and faux fur) dudes Ryan Seacrest described as the show's "resident divas."

The result: a quartet that dubbed themselves Country Queen, which delivered a train wreck of a performance. Still, somehow three of the four made it through.

Meanwhile, Arbos's group experience also proved to be a bit of a disaster – which some of his cohorts blamed on his inability to quickly learn the lyrics and melody to the Beach Boys hit "Wouldn't It Be Nice." Although his main nemesis got the boot, a tearful Arbos got the chance to sing another day.

The day of auditions came to a close with what was possibly the most heartbreaking Idol exit ever. New York City subway singer Frankie Ford got a case of the jitters before going on stage, then proceeded to screw up the lyrics and sing off key – leaving the judges no choice but to pull the plug on his dreams. Before walking off into the night, a sobbing Ford stared into the camera and said, "I swear to God I'm coming back next year and I'm going to win."

There will be more solos Thursday (8 p.m. ET), as the judges have to whittle the 43 men left in the competition down to 20 lucky fellas.

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New whooping cough strain in US raises questions

NEW YORK (AP) — Researchers have discovered the first U.S. cases of whooping cough caused by a germ that may be resistant to the vaccine.

Health officials are looking into whether cases like the dozen found in Philadelphia might be one reason the nation just had its worst year for whooping cough in six decades. The new bug was previously reported in Japan, France and Finland.

"It's quite intriguing. It's the first time we've seen this here," said Dr. Tom Clark of the Centers for Disease Control and Prevention.

The U.S. cases are detailed in a brief report from the CDC and other researchers in Thursday's New England Journal of Medicine.

Whooping cough is a highly contagious disease that can strike people of any age but is most dangerous to children. It was once common, but cases in the U.S. dropped after a vaccine was introduced in the 1940s.

An increase in illnesses in recent years has been partially blamed on a version of the vaccine used since the 1990s, which doesn't last as long. Last year, the CDC received reports of 41,880 cases, according to a preliminary count. That included 18 deaths.

The new study suggests that the new whooping cough strain may be why more people have been getting sick. Experts don't think it's more deadly, but the shots may not work as well against it.

In a small, soon-to-be published study, French researchers found the vaccine seemed to lower the risk of severe disease from the new strain in infants. But it didn't prevent illness completely, said Nicole Guiso of the Pasteur Institute, one of the researchers.

The new germ was first identified in France, where more extensive testing is routinely done for whooping cough. The strain now accounts for 14 percent of cases there, Guiso said.

In the United States, doctors usually rely on a rapid test to help make a diagnosis. The extra lab work isn't done often enough to give health officials a good idea how common the new type is here, experts said.

"We definitely need some more information about this before we can draw any conclusions," the CDC's Clark said.

The U.S. cases were found in the past two years in patients at St. Christopher's Hospital for Children in Philadelphia. One of the study's researchers works for a subsidiary of Johnson & Johnson, which makes a version of the old whooping cough vaccine that is sold in other countries.

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JournaL: http://www.nejm.org

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Glendale, district settle ACLU suit over campus raid

The ACLU of Southern California announced Wednesday that it had reached settlements with the city of Glendale and the Glendale Unified School District on behalf of eight Latino students who alleged that officials engaged in racial profiling and illegal searches during a 2010 incident at Hoover High School.

On Sept. 24, 2010, more than 50 Latino students were allegedly detained by Glendale and Los Angeles police officers who questioned them about possible gang affiliations. The students were also allegedly forced to pose for mock police mug shots.

In a lawsuit filed in U.S. District Court in Los Angeles in 2011, the ACLU alleged that officials targeted Latino students because of their race and that there was no evidence students were violating laws at the time they were questioned.

According to the settlement agreements, the city agreed to pay $50,000 to the ACLU of Southern California Client Trust Fund, and Glendale Unified and its defendants agreed to pay $50,000 to the ACLU Foundation of Southern California.

Claims against the Los Angeles County Probation Department and the Los Angeles Police Department are still pending "for their involvement in planning and executing the roundup," according to the ACLU.

"Unlike most cities, police departments or school districts, Glendale did not try to sweep this under the rug," said Bert Voorhees, who served as an attorney for the plaintiffs with the ACLU.

David Sapp — an attorney for the ACLU of Southern California — also commended the school district and city of Glendale for "using this incident as an opportunity to review their current practices and adopt new policies that will ensure that students' rights are protected on campus."

Under the agreement, Glendale Unified and the city's Police Department revised their policies regarding future police activities on school grounds.

The school board in November approved district-wide policy changes that require school officials to notify the parents of students who are questioned on campus by police.

The Glendale Police Department has updated training for officers, department spokesman Sgt. Tom Lorenz said.

"The no-racial-profiling policy has always been in effect," Lorenz said in an email. "We have taken steps so as to not have these types of 'allegations' occur in the future."

Glendale Unified and police officials also agreed to verify that information collected during the interrogations has been destroyed.

For her part, Ashley Flores — who was 16 years old and an A student when she was rounded up with other students for the detainment — said in a statement Wednesday that she was "happy that what happened to us won't happen to anyone else."

"I've never been in trouble and it was confusing, terrifying and humiliating," she added.

kelly.corrigan@latimes.com

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Tsunami Fear After Quake Off Solomons

AUCKLAND, New Zealand — Residents of islands from the South Pacific to Australia were alerted to the possibility of a damaging tsunami on Wednesday after an 8.0-magnitude earthquake off the Solomon Islands, according to scientists and news reports from the area, but the warnings were called off a few hours later.

Edmal Palmer, the chief reporter of the Solomon Star newspaper in Honiara, the capital of the Solomon Islands, said in a telephone interview that reports from Lata, the capital of the Temotu province, were sketchy but indicated that the wave apparently had struck three villages.

“We have heard that a wave 103 centimeters high” — nearly three and a half feet — “has hit Lata, swamping the town, and five people are still missing at the moment,” Mr. Palmer said.

Lata, where the quake struck, is in Temotu Province, where the population is around 30,000. It is a three-hour flight from the Solomons’ capital, Honiara, which was not damaged by the earthquake or tsunami.

Mr. Palmer said Honiara residents were not concerned by the tsunami: “Most of us are getting ready for tonight’s UB40 concert.”

“Sea level readings indicate a tsunami was generated,” the Pacific Tsunami Warning Center said on its Web site. The earthquake struck around 11 a.m. local time in the Santa Cruz Islands, part of the Solomon chain. There were conflicting reports as to the depth of the quake.

The center said the tsunami warning was limited to the Solomon Islands, Vanuatu, Nauru, Papua New Guinea, Tuvalu, New Caledonia, Kosrae, Fiji, Kiribati, Wallis and Futuna.

A lesser alert, a tsunami watch, was declared for American Samoa, Australia, Guam, the Northern Marianas, New Zealand and eastern Indonesia.

The earthquake was not only powerful but also “shallow,” giving it significant potential to do damage, said Barry Hirshorn, a geophysicist with the National Weather Service in Hawaii. Moreover, it was a thrust earthquake, he said, meaning that the sea floor moved up or down, not sideways, contributing to the potential for a dangerous tsunami.

But after the earthquake, as scientists watched to see how far a tsunami might spread, there were few early indications of a major threat beyond the immediate area, Mr. Hirshorn said. A water rise of about three feet had been observed close to the quake, he said, still high enough to be potentially damaging but probably not big enough to threaten distant shores.

In New Zealand, thousands of people were at the beach, swimming in the sea on a glorious summer afternoon on Waitangi Day, a national holiday — quite oblivious to the potential for a tsunami. Tsunami sirens were set off late in the afternoon there, and people in coastal areas were being told to stay off beaches and out of the sea, rivers and estuaries.

The New Zealand Herald reported Wednesday afternoon on its Web site that tsunami sirens in Suva, the capital of Fiji, had been warning people to stay inside or go to higher ground.

The Sydney Morning Herald reported on its Web site Wednesday that the Solomon Islands’ National Disaster Management Office had advised those living in low-lying areas, especially on Makira and Malaita, to move to higher ground.

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Kim Kardashian's Pregnancy Is No Reason to Speed Divorce, says Kris Humphries

By Mike Fleeman

02/05/2013 at 09:20 PM EST

Kris Humphries and Kim Kardashian

Seth Browarnik/StarTraks

Kim Kardashian's baby is not even born yet and already is being drawn into mama's divorce.

Kardashian, carrying boyfriend Kanye West's child, has bristled at what she sees as stall tactics by estranged husband Kris Humphries to close the legal books on their 72-day marriage.

But Humphries's lawyer Marshall W. Waller writes that "what is really going on here is that an 'urgency' in the form of an apparently unplanned pregnancy" is being used by Kardashian as "an opportunity to gain a litigation advantage (to) prematurely set this matter for trial."

He adds parenthetically that the pregnancy is "something (Humphries) had nothing to do with."

Waller explains his reasoning for calling the pregnancy as unplanned: "Indeed, why would (she) plan to get pregnant in the midst of divorce proceedings?"

Kardashian, herself, recently addressed the timing.

"God brings you things at a time when you least expect it," she said last month. "I'm such a planner and this was just meant to be. What am I going to? Wait years to get a divorce? I'd love one. It's a process."

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Critics seek to delay NYC sugary drinks size limit

NEW YORK (AP) — Opponents are pressing to delay enforcement of the city's novel plan to crack down on supersized, sugary drinks, saying businesses shouldn't have to spend millions of dollars to comply until a court rules on whether the measure is legal.

With the rule set to take effect March 12, beverage industry, restaurant and other business groups have asked a judge to put it on hold at least until there's a ruling on their lawsuit seeking to block it altogether. The measure would bar many eateries from selling high-sugar drinks in cups or containers bigger than 16 ounces.

"It would be a tremendous waste of expense, time, and effort for our members to incur all of the harm and costs associated with the ban if this court decides that the ban is illegal," Chong Sik Le, president of the New York Korean-American Grocers Association, said in court papers filed Friday.

City lawyers are fighting the lawsuit and oppose postponing the restriction, which the city Board of Health approved in September. They said Tuesday they expect to prevail.

"The obesity epidemic kills nearly 6,000 New Yorkers each year. We see no reason to delay the Board of Health's reasonable and legal actions to combat this major, growing problem," Mark Muschenheim, a city attorney, said in a statement.

Another city lawyer, Thomas Merrill, has said officials believe businesses have had enough time to get ready for the new rule. He has noted that the city doesn't plan to seek fines until June.

Mayor Michael Bloomberg and other city officials see the first-of-its-kind limit as a coup for public health. The city's obesity rate is rising, and studies have linked sugary drinks to weight gain, they note.

"This is the biggest step a city has taken to curb obesity," Bloomberg said when the measure passed.

Soda makers and other critics view the rule as an unwarranted intrusion into people's dietary choices and an unfair, uneven burden on business. The restriction won't apply at supermarkets and many convenience stores because the city doesn't regulate them.

While the dispute plays out in court, "the impacted businesses would like some more certainty on when and how they might need to adjust operations," American Beverage Industry spokesman Christopher Gindlesperger said Tuesday.

Those adjustments are expected to cost the association's members about $600,000 in labeling and other expenses for bottles, Vice President Mike Redman said in court papers. Reconfiguring "16-ounce" cups that are actually made slightly bigger, to leave room at the top, is expected to take cup manufacturers three months to a year and cost them anywhere from more than $100,000 to several millions of dollars, Foodservice Packaging Institute President Lynn Dyer said in court documents.

Movie theaters, meanwhile, are concerned because beverages account for more than 20 percent of their overall profits and about 98 percent of soda sales are in containers greater than 16 ounces, according to Robert Sunshine, executive director of the National Association of Theatre Owners of New York State.

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Follow Jennifer Peltz at http://twitter.com/jennpeltz

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L.A. airports panel approves moving runway closer to homes

Despite a fresh round of objections from neighborhood groups, airport commissioners Tuesday endorsed a controversial plan to push Los Angeles International Airport's northern runway closer to nearby homes for safety and efficiency reasons.

The action is part of a larger modernization effort designed to keep one of the nation's busiest aviation centers — and an economic engine for the region — competitive in an era of larger jetliners and airport upgrades in major cities, such as San Francisco.

"This is a reasonable and fair compromise," said Michael Lawson, president of the Los Angeles Board of Airport Commissioners, who cited a need to improve runway safety. "I don't want to be on a commission that made the wrong decision."

Airport commissioners voted 6 to 1 to approve the final environmental impact statement and conceptual plans for the latest round of proposed improvements to the nation's third busiest airport, including the runway separation project.

Commissioner Valeria Velasco, who lives in Playa del Rey a few houses away from LAX, voted against the plan because of the runway proposal, noting that she otherwise supports the airport's modernization.

On the list of proposals are terminal additions, upgrades to existing passenger facilities and a transportation center, as well as new parking areas and a consolidated car rental facility in nearby Manchester Square. Also planned are links to a light rail station at Aviation and Century boulevards and a people mover around the terminal area.

Individual board approvals are still needed for all the projects, the total cost of which is estimated at $4.76 billion. Though officials want to finish construction by 2025, it is unclear if or when all the proposals would be built.

The most controversial project is the 260-foot separation of the two northern runways to make room for a taxiway between them. Commissioners selected it as the preferred alternative out of nine options that have been under evaluation.

Proponents say the runway plan would increase safety and make it easier for the airport to manage the largest commercial jets, such as the giant Airbus A380, which now requires special handling when it arrives at LAX. They say that six earlier safety studies backed the plan, and that runway separations have generally been supported by pilots and the Federal Aviation Administration.

Because the proposal is confined to LAX property, airport officials say that no homes or businesses will be condemned and that measures will be taken to reduce environmental effects.

"I am very glad that we have gotten through a major milestone, but we have many milestones to go," said Gina Marie Lindsey, the executive director of Los Angeles World Airports, the operator of LAX.

Velasco and opponents in communities surrounding the airport contend that the project will increase noise, air pollution and traffic congestion in adjacent neighborhoods, further degrading their quality of life.

They assert that less harmful options are available and that the project would not substantially improve airport operations. Critics cite the latest safety study from NASA-Ames, which concluded that the northern runway complex is already extremely safe and that little would be gained from the $750-million separation.

The opponents also note that aviation industry demand for the wide-winged A380 is shrinking. And they say the airport's own environmental analysis concluded that the proposal would not improve efficiency as much as an alternative to upgrade just the northern taxiways.

Denny Schneider, director of the Alliance for a Regional Solution to Airport Congestion, said his organization would consider challenging the board's decision in court.

"I'm disappointed that misinformation trumps the facts," Schneider said. "I guess we will have to continue the fight to gain sanity in what we spend in this city and to protect the region from the problems that could arise when they try to implement this unworkable plan."

dan.weikel@latimes.com

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Gas Buildup and Spark Blamed in Pemex Blast

MEXICO CITY — Mexico’s attorney general said Monday that a buildup of gas ignited by a spark from a faulty electrical system had caused the explosion at the headquarters of Mexico’s state-owned oil company, which killed at least 37 people last week.

Jesús Murillo Karam, the attorney general, said a team of investigators from Mexico, Spain, the United States and Britain had found no evidence of explosives. He noted that there were no burn marks like those usually produced by explosives, nor were there signs of a crater, nor did investigators find any bomb-making materials in the office building where the blast occurred Thursday, just behind the company’s Pemex tower.

“We found no residue of any kind of explosive device,” Mr. Murillo said. He added that it had been a “diffuse” explosion, causing damage consistent with an accumulation of gas. The pressure pushed several floors of the building up, he said, and then they fell, collapsing on dozens of workers, including two more found dead this weekend buried in the rubble.

His explanation, delivered at a news conference late Monday, brought to a close several days of speculation. The government had been heavily criticized for not sharing enough information about the cause even as experts warned that investigations of this kind often take several days to figure out.

There are still some unanswered questions. Mr. Murillo said officials had yet to discover the source of the gas, which had built up in the basement of the building. Investigators believe it was methane that leaked from several ducts and tunnels underneath or connected to the building, he said. Why they leaked, who failed to notice (Pemex is responsible for inspecting its own buildings) and what exactly caused the gas to explode have not been clearly determined.

Mr. Murillo said that while there appeared to be no evidence of criminal wrongdoing, criminal charges were still a possibility.

When the blast occurred in the basement of an administrative building next to the 52-story tower, about 4 p.m. Thursday, windows shattered, the ground shook and thousands of panicked employees fled.

At the time, company officials said there was significant damage to the first floor and mezzanine of the building, and witnesses said they saw rescue workers helping trapped employees who had been pinned under falling debris, while others dragged out the injured and the dead.

The future of Pemex is a subject of debate. The national institution has been plagued by declining production, theft and an abysmal safety record that includes a major pipeline explosion almost every year. A pipeline blast in September killed 30 workers.

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