Orange County Employment Lawyer Blog

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 Riverside County Superior Court jury awarded $25 million in punitive damages to the nearly $1 million in compensatory damages they had awarded the previous day to a former Kmart manager for age discrimination. In the case of Harkins v. Kmart, the plaintiff alleged that Kmart's unlawful conduct was part of a sequence of events designed to get him to retire. Plaintiff had provided exceptional service to Kmart for 20 years, and claimed he was being terminated solely due to his age (64). He alleged that in the months before his termination, he was unlawfully demoted and disciplined in veiled attempts to "work on him" to quit or retire. When he did not "retire" or quit, he was fired. This firing, plaintiff alleged, was retaliatory due to his refusal to quit and due to his age.

My Orange County Employment Law Firm was recently retained on a case where age discrimination was the primary claim. In assessing such cases, it is sometimes difficult to distinguish between a company's need to reduce its work force due to budgetary concerns and a company using that reason as a pretext for its true motive, ridding itself of an "old" employee. Factors that tend to sway the scales in one direction or the other tend to be things like whether other job positions were eliminated, if other employees lost their jobs (and their ages in comparison to the rest of the workforce) and if the company intends on hiring (or has hired) new employees to replace or fill the holes left by the dismissed employees.

Almost all California employees are "at will" employees, meaning they can be terminated for any reason, so long as it is not an unlawful reason. So, if most employees are at will employees, what separates a termination from a wrongful termination?

California employees can essentially be terminated for any reason, so long as the reason is not an unlawful reason. Here are some of the more common unlawful reasons that would make a termination a wrongful termination:

1. An employee may not be terminated for lawfully reporting sexual harassment to a supervisor or to Human Resources;
2. Similar to above, an employee cannot be terminated for participating in an investigation of someone else's claims of sexual harassment or unlawful discrimination;
3. For exposing certain unlawful wrongdoings by the company or by a higher ranking employee of the company, commonly known as whistle-blowing;
4. For submitting a worker's compensation claim from injuries suffered at work;
5. For complaining to management or Human Resources about not receiving proper wages, overtime compensation, lunch breaks or rest breaks;
6. For filing a complaint with a governmental or administrative agency such as the DFEH or the Labor Board; and
7. Lastly, an employee is not at will if that employee has an employment contract designating a specific period of time.

California law prohibits employers with at least five or more employees from discriminating against an employee on the basis of pregnancy, childbirth or pregnancy-related medical condition.

The Family and Medical Leave Act (FMLA) generally provides that an employee who is disabled on account of pregnancy is entitled to up to four months of leave from work. All time off needed for routine prenatal care, such as doctor's visits, as well as, time off for medically-ordered bed rest, severe morning sickness, childbirth, recovery from childbirth or other pregnancy-related condition may be counted against the leave time. Furthermore, if the employee does not exceed the leave time, she is guaranteed the right to return to work at the same position or a comparable position.

Like any physical disability, an employee disabled on account of pregnancy or a pregnancy-related medical condition has the right to request a medically-advisable reasonable accommodation, such as a request for less strenuous or less hazardous duties. The request needs to be based upon the recommendation of your doctor. Whether the accommodation must be provided is generally based upon whether the accommodation is reasonable and whether the requested accommodation unduly burdens the employer.

Any violation of the rights described above may give rise to a claim of sex (pregnancy) discrimination against your employer.

RELATED RESOURCES

Family and Medical Leave Act (FMLA)

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)