RBGG’s Gay Grunfeld and Priyah Kaul contributed an article to the January 2022 issue of Plaintiff entitled Overcoming Pitchess in Workplace Discrimination Suits. The full article is available here.
According to the article:
“In the wake of the murder of George Floyd and the Black Lives Matter protests of 2020, law enforcement reform is an urgent public policy objective. Reform efforts have properly focused on interactions between police and civilians, which too often are marred by abuse of authority and deadly use of force. Less attention, however, has been paid to the body of law governing the workplace culture within law enforcement, which has contributed to discriminatory and abusive policing. Workplace anti-discrimination lawsuits are vital to rooting out unlawful discrimination within law enforcement, which in turn will allow its ranks to better reflect and serve all communities.
While the California Legislature recently expanded the reach of the Fair Employment and Housing Act (FEHA),1 one doctrine applicable only in the law enforcement context stands in the way of change. California’s judicially created and later codified “Pitchess” doctrine strictly limits discovery and disclosure of peace officer personnel records. These limits historically have been among the most restrictive of any state in the nation.2 In the last three years, the California Legislature has passed bills giving the public greater access to certain records. These records include, among other things, discharge of a firearm, serious uses of force, and incidents involving sustained findings of sexual assault against the public, dishonesty in reporting or investigating a crime, and prejudice or discrimination. This legislation, while significant, does not go far enough, especially because it mostly relates to sustained findings of officer misconduct, which are rare, and because agencies may draw out the process of disclosure. These issues, as well as aggressive record-purging policies, dilute the Legislature’s recent reforms. In the FEHA context, despite reforms, the Pitchess doctrine may gut a plaintiff’s efforts to prove discrimination occurred by blocking access to important evidence. This article describes how the Pitchess doctrine evolved to its current dimensions and offers strategies to limit its negative effects on an FEHA plaintiff’s case.”