Orange County Employment Lawyer Blog

The Equal Employment Opportunity Commission (EEOC) announced the simultaneous filing and $70,000 settlement of a disability discrimination lawsuit brought against Gemmel Pharmacies Inc., doing business as B&B Pharmacy, on behalf of a pharmacist who was denied a reasonable accommodation and fired due to his disability.

According to the Equal Employment Opportunity Commission, the pharmacist was hired at B&B Pharmacy in Bellflower, California in January 2007. The pharmacist was known to have severe diabetes, including renal failure. In August 2007, the pharmacist learned that a donor kidney had become available for him, requiring an immediate kidney transplant. He quickly advised B&B management of the impending surgery and his need for two to three months of unpaid leave of absence to recover. Instead, according to the EEOC, B&B Pharmacy fired and replaced the pharmacist instead of giving him reasonable accommodations. This is an example of a wrongful termination.

Most California employees are "at-will" employees. This means they may be terminated by their employers with or without cause, with or without prior notice. By the same token, "at will" employees may resign from their employment with or without cause, with or without prior notice. There are a few exceptions to "at will" employment, including the following: (1) Where the employee has an employment contract for a specified period of time; (2) Where the employer, by its own conduct, has essentially nullified an employee's "at will" employment status by making certain statements, promises, or representations; and (3) Where the employee engaged in certain legally-protected conduct.

Examples of Legally-protected Conduct:
•An employee may not be lawfully terminated for legitimately reporting sexual harassment (See also "Retaliation");•An employee may not be lawfully terminated for participating in an investigation into allegations of unlawful discrimination or harassment;
•An employee may not be lawfully terminated for filing a worker's compensation claim;
•An employee may not be lawfully terminated for "blowing the whistle" on certain unlawful conduct (See also "Whistle-blowing");•An employee may not be terminated for complaining internally about not receiving overtime pay, proper rest breaks or lunches, or proper wages;
•An employee may not be terminated for filing a complaint with a governmental or administrative agency, such as the Labor Board or DFEH

Continue reading "Equal Employment Opportunity Commission Finds Bellflower, California Pharmacist Was Wrongfully Terminated" »

News Break-This week The California Department of Fair Employment and Housing announced that United Parcel Service (UPS) must pay more than $96,000 in damages after the company fired employee Eva Linda Mason because of her disability. The Fair Employment and Housing Commission found that UPS had unlawfully terminated Ms. Mason even though she could perform the essential functions of her job. As an experienced Orange County Employment Law Firm, it is important to understand the difference between a disabled employee "with restrictions" and an employee who is "permanently disabled".

There are a small number of situations where an employer can justify terminating an employee due to a permanent disability. One such example is if the disability substantially inhibits one's ability to perform their job and there is no reasonable accommodation that can be made under such circumstances. An employer can validly terminate an employee without it being a wrongful termination.

UPS hired Ms. Mason in 1997 primarily as an Operations Management Specialist to handle customer calls and complaints on shipments. Although she occasionally located packages in a warehouse, handling packages was not part of her job. After Ms. Mason had knee surgery and took a leave of absence to recover in 2007, she continued to carry out the essential customer service functions of her job. Nonetheless, UPS perceived Ms. Mason as disabled because she had some restrictions, such as limited standing, walking, bending, and kneeling. UPS had a 12-month cap on the length of time employees with disabilities could be reasonably accommodated from their regular duties. UPS applied this cap to Ms. Mason and fired her in August 2008.

The Department of Fair Employment and housing said that "Using a 12-month cap to fire disabled employees is unlawful under the Fair Employment and Housing Act (FEHA)," and employees with disabilities must be allowed to work if they can perform their essential job duties with or without accommodation."

The Commission ordered UPS to pay $96,170 in damages, including $10,000 in administrative fines to the State. UPS must also post a notice about its liability and develop a policy and train management on disability discrimination.

Continue reading ""California Labor Board Finds UPS Liable For Disability Discrimination"" »

It is an unfortunate fact that more and more female employees are subjects of sexual harassment at their place of employment. Recently, our Orange County Law Firm has consulted with several employees who have been the subject of workplace harassment and discrimination. Recently, a school bus company agreed to pay $150,000 to settle allegations that a male supervisor at its Los Angeles, California facility sexually harassed at least four women, including bus drivers and a human resources assistant, as reported by the Beverly Hills Courier.

According to the U.S.Equal Employment Opportunity Commission, four female employees of First Student were sexually harassed, retaliated against or forced to quit. First Student builds itself as North America's leading school bus transportation services company. According to an EEOC lawsuit alleging civil rights violations, the supervisor made constant explicit remarks about the employees' body parts and the sexual acts he wanted to perform on them.

The harassment turned physical when the supervisor exposed himself, grabbed the breasts of a bus driver and rubbed his private parts against her body, according to the EEOC. The harasser cut another bus driver's hours upon refusal of his advances and promised extra hours to female employees who might submit, according to the EEOC, which reported that three of the victims felt forced to resign as a result of the ongoing harassment.

According to the EEOC, aside from the monetary relief, the parties entered into a consent decree, valid through 2012, which requires First Student to hire an outside employment consultant to revamp the company's policies, complaint procedures, investigations and training of its employees on sex discrimination, harassment and retaliation.

Continue reading "Los Angeles School Bus Company To Pay $150,000 To Settle A Los Angeles California Sexual Harassment Lawsuit" »

Any California employee who feels they were discriminated against at work due to a disability falls under the auspice of the EEOC (Equal Employment Opportunity Commission). As discussed in my prior blog post, disabilities used to be defined as "conditions that affect one or more of the body systems, such as the musculoskeletal and neurological systems, and that limit an individual's ability to participate in a major life activity." On September 23, 2009, the new Amendments to the ADA (Americans with Disabilities Act) were published, which included some of the following items:

• The definition of "disability" was broadened, making it easier for an employee to establish that she has a disability. Specifically, where it once said "substantially limiting a major life activity", the new amendment does not require the disability to be significant or severely restricting a major life activity.
• The definition of "major life activities" was significantly broadened.
• If a disability is in remission but would substantially limit a major activity when "active" it still would be considered a disability.

RELATED RESOURCES

EEOC Notice Concerning the ADA Amendments Act of 2008

A recent Orange County case on appeal in the Fourth District (Scotch v. Art Institute of California-Orange County, Inc.) affirmed summary judgment (a motion to have the entire case dismissed before trial) for the Defendant was proper because the Plaintiff did not identify a reasonable accommodation that was available at the time the interactive process (meeting between the employer and the employee) occurred.

FEHA protects individuals with "disabilities." "Physical disability" has been defined to include cosmetic disfigurement and physiological and anatomical conditions that affect one or more of the body systems, such as the musculoskeletal and neurological systems, and that limit an individual's ability to participate in a major life activity. Employers may not bar or discharge from employment an employee based upon his/her's disability, or otherwise discriminate against the person in compensation or in terms, conditions or privileges of employment.

REASONABLE ACCOMMODATION / INTERACTIVE PROCESS

The law imposes an affirmative obligation on both parties to engage in the "interactive process" to determine whether reasonable accommodations are possible. A lot of litigation concerns whether an employer engaged in good faith discussions with the employee concerning the availability of reasonable accommodations, including alternative positions. Failure to engage in the good faith "interactive process" by either an employer or employee can be determinative on the validity of certain disability discrimination claims. The accommodation process is a dynamic one with many considerations to be evaluated. The FEHA requires employers to make reasonable accommodation for the known disabilities (mental or physical) of employees to enable them to perform a position's essential functions, unless doing so would produce undue hardship on the employer's operations or would create a danger or threat of safety to the disabled employee or others. Some possible reasonable accommodations that may be considered include, but are not limited to:

• Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities;
• Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities; or
• Providing a finite leave of absence for a disabled employee to recuperate or care for his or her disability.

However, as Scotch v. Art Institute of California-Orange County, Inc., demonstrates, claims by an employee against an employer for failing to engage in the interactive process must identify a reasonable accommodation that was available at the time the interactive process should have occurred. The court recognized that during the interactive process itself, an employee may not have the same access to information about possible accommodations as the employer. However, the court states that through litigation, particularly discovery, the employee must be able to identify a reasonable accommodation that would have been available during the interactive process.

RELATED RESOURCES

California Employment Lawyers Assocation (CELA)
Department of Fair Employment and Housing (DFEH)