Articles Posted in Employment Law

When it comes to providing reasonable accommodations that comply with the Fair Employment and Housing Act, a recent federal case from Southern California illustrates that informal accommodations may not be enough. The 9th Circuit Court of Appeals revived a maintenance worker’s disability discrimination case, concluding that the receipt of permission to arrive late to work as needed from his immediate supervisor may not have constituted a valid accommodation, given that higher managers took actions that “chilled” the employee’s freedom to avail himself of the accommodation.

The 9th Circuit’s ruling was good news for Anthony Nigro, who worked for Sears Roebuck & Co. as a maintenance technician in Carlsbad. The employee had ulcerative colitis, an inflammatory bowel disease that caused him to lose sleep at night. Because of this condition, Nigro’s immediate supervisor, Jason Foss, allowed him to arrive at work at 9:00 a.m. as needed, instead of the usual 6:00 a.m. The general manager of the Carlsbad store, Larry Foerster, disapproved of the accommodation for Nigro and demanded that the employee arrive at work at 6:00 a.m. every day.

Continue reading ›

As an employer, understanding exactly what the Fair Employment and Housing Act requires of you when faced with an employee with a disability is extremely important. Failing to go far enough in reasonably accommodating an employee can risk triggering potentially expensive and time-consuming litigation. Two recent California Court of Appeal cases, published within five days of each other, help give some instruction regarding the reasonable accommodation of employees with restrictions. Of the things the law requires employers to do in making reasonable accommodations, both cases make clear that ignoring or dropping essential functions of a job is not among them.

The first of this pair of cases came from Imperial County, where Joseph Garcia worked for the state Department of Corrections & Rehabilitation as a painter. Five years into the job, Garcia developed head and neck pains, along with vertigo. His doctor advised that he remain at ground level and avoid climbing ladders, roofs, and scaffolding. The department eventually demoted him from painter to laboratory assistant. When Garcia did not show up for his new assignment, the state terminated him.

Continue reading ›

A retail store chain was not required to hold a sales associate’s job indefinitely to satisfy the Fair Employment and Housing Act’s reasonable accommodation requirement, the California Court of Appeal recently ruled. The opinion illustrates that employers may have to provide leave of some duration as a reasonable accommodation, but there are limits as to the lengths the law requires an employer to go in accommodating an employee with a disability.

The employee in the case was Hourvash Dezham, a sales associate at Macy’s, where she’d worked since 1997. In 2010, the employee was injured on the job, breaking one of her toes. After seven weeks, Dezham returned to work, but with modified duties to keep her off her feet. Sometime later, the employer purchased a scooter for the employee to use at work. By May 2011, however, the employee remained injured, and her doctor required her to take leave again. Eight months later, Macy’s terminated her employment.

Continue reading ›

Although the Americans with Disabilities Act offers relatively broad protection to employees, an employee must still prove that his or her disability substantially impairs one or more life activities. A police officer with attention deficit hyperactivity disorder (ADHD) lost his ADA Case on appeal because the 9th Circuit Court of Appeals determined that his impairment stemmed not from his disability but from his being a “cantankerous” person.

Matthew Weaving, a police officer in Oregon, had suffered from ADHD since childhood. Weaving’s colleagues and superiors often described him aloof, abrasive, and intimidating. Despite his behavior, Weaving had risen to the rank of sergeant with the Hillsboro Police Department by 2008. However, after a confrontation with a subordinate officer, the department placed him on leave. While away from work, the officer consulted a medical professional, and the doctor determined that he had adult ADHD. Weaving returned to the police department and requested a disability accommodation based upon his ADHD.

Continue reading ›

A recent ruling in a Fair Employment and Housing Act violation case provides beneficial information about when an employer is, and is not, able to demand that an employee undergo a psychological examination. A recent California Court of Appeal ruling went in favor of the employer, since the test was both job-related and necessary for the employer’s business. The court also upheld the employer’s decision not to initiate an interactive process, since the employee did not complete the required steps to trigger that requirement under the FEHA.

The case involved the University of San Francisco and one of its mathematics professors, John Kao. The underlying dispute emerged after the professor’s behavior allegedly took a dramatic turn. After teaching at the university for more than a decade and a half without any interpersonal incident, the professor became the subject of several colleagues’ reports to superiors, claiming that Kao exhibited hostile, aggressive, volatile, and unstable behavior around them while discussing his displeasure with the way the university was going about recruiting a new math professor.

Continue reading ›

In a decision that may have wide-reaching implications, the California Court of Appeal ruled that, if an employee’s job requires him or her to use a personal cell phone for work-related activities, the employer must reimburse the employee a reasonable amount for that usage. The court’s decision concluded that employers have this reimbursement obligation even if the employee’s cell phone service plan gives the employee unlimited minutes of cell phone usage time or the employee did not pay the bill for the cell phone.

The case arose after Colin Cochran, a customer service manager for Schwan’s Home Service, Inc., filed a proposed class action on behalf of himself and 1,500 other Schwan’s employees. The employees were customer service managers and route managers, whose job duties required them to maintain frequent telephonic interaction with customers of Schwan’s food delivery service. The employer did not provide cell phones to its customer service managers and route managers, instead requiring them to use their personal devices. Cochran filed his suit after the employer refused to provide reimbursement for the use of the personal cell phones.

Continue reading ›

In a ruling that appears to represent a setback for workers, the California Supreme Court recently decided that the sexual harassment a restaurant server suffered on the job only allowed her to sue the franchisee that owned the location where she worked, not the restaurant chain as a whole. Since the chain did not manage or control its franchisees, it could not be liable for their misconduct.

The suit arose from Taylor Patterson’s employment at a Thousand Oaks Domino’s Pizza restaurant. According to the teen, during her brief time as a server at the business, she suffered multiple instances of sexual harassment, both of the physical and verbal varieties, by her manager. The server sued Domino’s for multiple violations of the Fair Employment and Housing Act, including sexual harassment, failure to take the appropriate measures to prevent harassment, and retaliation against her for reporting harassment.

The crux of Patterson’s case centered less on whether the server suffered sexual harassment, but more on the legal relationship between her and Domino’s. Patterson claimed that both she and her manager were employees of Domino’s, and the pizza chain was liable for the manager’s actions, while Domino’s argued that that its contractual arrangement with its franchisees made clear that its franchisees were independent entities and that neither the server nor the manager were its employees.

Continue reading ›

The 9th Circuit Court of Appeals recently reversed a trial court’s decision to throw out a lawsuit launched by several sheriff’s deputies in San Francisco, who claimed that a policy prohibiting male deputies from overseeing female prisoners was discriminatory and violated the Fair Employment and Housing Act. The appeals court rejected the ruling because the evidence was insufficient to show that being female was a bona fide occupational qualification for supervising female inmates.

The City and County of San Francisco enacted a new policy barring men from overseeing female inmates. The employer claimed that it created the policy to maintain the safety and privacy of female inmates, as well as the security of the institution. After the employer implemented the policy, several deputies sued, claiming the policy violated Title VII and FEHA. Generally, discrimination based on sex is illegal unless the employer establishes that the restriction is a bona fide occupational qualification (BFOQ), meaning that it is reasonably necessary within the context of the employer’s business to restrict employment based upon an employee’s sex.

The trial court concluded that protecting the female inmates’ safety and privacy was a valid concern and that the government sufficiently made its case that a sex-based restriction was reasonably necessary to achieve that goal. The appeals court disagreed and reversed. While it agreed that protecting the safety and privacy of inmates was a valid ground for the policy, the employer did not have enough to prove that its means (eliminating all male guards) was necessary to achieve its stated end.

Continue reading ›

The California Supreme Court issued a recent ruling that brightens the spotlight on the rights of undocumented workers to seek recovery for their employers’ violations of the state’s employment laws, including the Fair Employment and Housing Act. The court’s decision stated that federal immigration law did not prevent the enforcement of a state law giving all workers, including undocumented workers, the right to sue in cases of discrimination, retaliation, wrongful termination and other employment law violations.

Mr. Salas was a production-line worker for Sierra Chemical Co. in 2006 when he was injured at work. Twice, Salas hurt his back stacking crates. After the second injury, Salas filed a workers’ compensation claim. Sierra laid Salas off that December.

After Sierra declined to rehire Salas the next year, the worker sued his former employer for violating the FEHA. Salas claimed that he was disabled and that Sierra failed to accommodate his disability, and that the employer discriminated against him in retaliation for his filing the workers’ comp claim.

Continue reading ›

A university affirmative action director’s discrimination and retaliation lawsuit failed and, recently, so did her appeal due to her own written and oral statements. The California Court of Appeal ruled that the university’s stated reason for termination was a legitimate one and not just a pretext for discrimination. The employee’s own words established that the job task that the employer cited in her termination was a vital element of her job, and that the failure to perform the task could have negative consequences for the university.

Conchita Serri’s lawsuit stemmed from her employment with Santa Clara University, where she served as the director of affirmative action. In 2006, a dispute arose between Serri and the university president regarding the school’s affirmative action plans. The director told the president that the university had not had a valid plan for years and that the university should hire a consultant to assist in the creation of a plan. Instead, the president removed the responsibility from Serri and reassigned the task to another employee.

The university eventually terminated Serri for her failure to prepare the plans, her failure to notify the administration about the lack of plans, and her misrepresentations about the plans. The director sued, alleging that the school’s actions were motivated by gender bias and retaliation. At trial, the university moved for summary judgment, arguing that it fired Serri for a legitimate and non-discriminatory reason:  namely, her failure to do her job competently with regard to completing affirmative action plans.

Continue reading ›