reasonable accommodation

Employee Bears Burden Trial Proving Available ADA Accommodation

On May 11, 2018, the Ninth Circuit Court of Appeals ruled that the plaintiff, not the employer, maintains the burden of proving the availability of a reasonable accommodation, even if the employer did not take advantage of the interactive process under the Americans with Disabilities Act (ADA). [Snapp v. Burlington Northern Santa Fe Railway Co.]

Background

Plaintiff, Danny Snapp worked for BNSF from 1971 through 1999. Due to tiredness and low energy, he went to a doctor in 1994. He was diagnosed with sleep apnea and had surgeries in 1996 and 1998 in unsuccessful attempts to correct his condition. In 1999, BNSF received a report from Snapp’s physician. Snapp’s supervisor told Snapp he did not believe Snapp could work in a safe manner. In 1999, Snapp took a “fitness for duty” evaluation, was determined to be totally disabled, and went on short-term disability leave. He applied for long-term disability benefits through CIGNA, the third-party administrator for BNSF’s disability plan. In February 2000, BNSF’s medical director told Snapp that CIGNA had approved Snapp’s claim for disability benefits and that, should CIGNA later find him ineligible, he should contact BNSF’s medical director to plan a “return to work.”

Snapp began a period of long-term disability leave and received payments from CIGNA. In 2005, CIGNA requested a sleep study to verify Snapp’s continuing disability. When Snapp arrived at a clinic for the study, the clinic asked him to sign a release accepting personal financial responsibility for the test. He refused and did not complete the study. In November 2005, CIGNA terminated Snapp’s disability benefits citing an absence of evidence of continuing disability.

Snapp brought action against the United Transportation Union and his former employer, Burlington Northern Santa Fe Railway Company (BNSF), alleging a failure to accommodate under the Americans with Disabilities Act. A jury returned a defense verdict, and Snapp appealled. At trial, the parties disputed whether Snapp had requested an accommodation. In addition, the parties disagreed as to whether and how the jury instructions should address the “interactive process,” i.e., the statutorily required collaborative effort for identifying an employee’s abilities and an employer’s possibly reasonable accommodations. Snapp argued the district court improperly rejected a proposed instruction that would have imposed liability on BNSF merely for failing to engage in the interactive process, regardless of the availability of a reasonable accommodation. Snapp also argued the district court improperly rejected a proposed jury instruction that would have described his overall burden of proof as a mere burden of production rather than as an ultimate burden of persuasion. Finally, Snapp argued the district court erred by refusing to treat statements by BNSF’s Federal Rule of Civil Procedure 30(b)(6) corporate representative as binding admissions.

ADA reasonable accommodation
The ADA treats the failure to provide a reasonable accommodation as an act of discrimination if 1) the employee is a “qualified individual,” 2) the employer receives adequate notice, and 3) a reasonable accommodation is available that would not place an undue hardship on the operation of the employer’s business. 42 U.S.C. § 12112(b)(5)(A) (“[T]he term ‘discriminate against a qualified individual on the basis of disability’ includes—not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity[.]”). The statute itself places on the employer the burden to demonstrate an undue hardship.

Ninth Circuit Decision
After losing on the motion and the trial, the plaintiff again appealed to the Ninth Circuit, this time questioning the jury instruction on the burden of proof. The Ninth Circuit found no error and affirmed the judgment of the district court. The plaintiff argued that under the Supreme Court’s Barnett decision, employers that fail to take advantage of the interactive process to explore accommodations bear the burden of proof through trial as to whether there were any available measures which could have been taken. The court disagreed, limiting the impact from not engaging in the interactive process to the summary judgment stage, and not at the trial itself. Almost every federal court considering this question has concluded that at trial, the plaintiff must demonstrate the availability of a reasonable accommodation not provided by the employer.

Conclusion
California employers avoided an almost impossible situation as the court ruled against the plaintiff. Due to this decision, companies will not face an insurmountable legal hurdle when later called upon to defend their decisions, however, this case reinforces the importance of engaging with employees facing medical issues relating to work performance. This case also demonstrates the complexities in both state and federal laws when it comes to disability and sex-based discrimination. The experienced California employment lawyers at Kingsley & Kingsley can quickly answer your questions about the ADA, disability , or any of California’s employment laws. To discuss these laws, or a potential claim on your behalf, feel free to call us toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

 

Ninth Circuit Rules on Equal Pay Act Case

Bottom Line
While the Equal Pay Act (EPA) permits “a differential based on any other factor other than sex,” the Ninth Circuit Court of Appeals issued an important decision on April 9, 2018 in Rizo v. Yovino, holding that an employee’s prior compensation is not a “factor other than sex.” Specifically, the Court held that the above exception under the EPA is intended to allow employers to rely upon only job-related factors, such as experience, educational background, ability, or prior job performance. Prior compensation, the Court opined, is not job-related.

Background
Aileen Rizo was hired as a school teacher in Fresno County in 2009. Rizo’s new salary was set according to the County’s Standard Operating Procedure No. 1440 (SOP 1440), which implemented a 10-level salary scale. SOP 1440 determined a new hire’s salary by taking the individual’s prior salary, adding 5%, and placing the new employee in the corresponding step of the salary schedule. Based on her previous position where Rizo earned a salary of just over $50,000 per year, SOP 1440 placed Rizo in the lowest salary tier, earning $62,133 per year.

While one the job, Rizo discovered that she was being paid less than other male teachers performing the same job. She sued for unequal pay under the Equal Pay Act (29 U.S.C. § 206(d)), and sex discrimination under Title VII and California’s Fair Employment and Housing Act (FEHA).

The Equal Pay Act  
The EPA provides that no employer shall discriminate between employees on the basis of sex “by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . .”

Unlike Title VII, the EPA does not require a plaintiff to show that the employer intended to discriminate. Instead, the plaintiff need only show that she is doing the same job as a male employee (and only needs to have one comparator) but is paid less. If the plaintiff can establish those facts the employer must prove one of four affirmative defenses. In this case, the relevant affirmative defense was that the pay differential was “based on any factor other than sex.”

Fresno County Motion in District Court
Fresno County conceded that it paid Rizo less than her male counterparts. However, it moved for summary judgment noting that SOP 1440’s reliance on an employee’s prior salary was a “factor other than sex” under the EPA. The district court denied Fresno County’s motion but certified it for immediate appeal.

A three judge panel vacated the district court’s decision. The panel held that a prior Ninth Circuit decision, Kouba v. Allstate Insurance Co., had settled the issue back in 1982. Under Kouba, an employer could rely on prior salary as a “factor other than sex.” Ms. Rizo did not take that decision lying down and asked for the entire Ninth Circuit to weigh in.

Ninth Circuit
Ninth Circuit Court of Appeals overruled prior Circuit law to hold that an employee’s previous compensation, either alone or in combination with other factors, cannot form the basis of a wage differential between men and women. In an en banc decision, the Ninth Circuit did so, indicating its intent to “clarify the law, including the vitality and effect of Kouba.” “Prior salary alone or in combination with other factors cannot justify a wage differential. To hold otherwise—to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum—would be contrary to the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands.”

The Court reserved the question of “whether or under what circumstances, past salary may play a role in the course of an individualized salary negotiation.” It remains an open question, therefore, whether an employer would violate the Equal Pay Act by offering an increased salary to an applicant who had rejected a lower offer because of his or her salary history.

Moving Forward
Employers should exercise extreme caution when using prior salary history to make hiring decisions. In California, recently-enacted Labor Code 432.3 stipulates restrictions on the use of such information, as do laws in several other states. If you have questions about the Equal Pay Act or would like to discuss a situation you are experiencing at work, please call us toll-free at 888-500-8469.  Our attorneys are here to help you understand your rights.

Additional Resources:

The Equal Pay Act of 1963

Equal Compensation

California Wage and Hour Laws

Employee Protections Breastfeeding Discrimination

Breastfeeding Discrimination

Laws that protect employees from breastfeeding discrimination are grounded in both federal and state laws. We recap below the various federal and state laws guiding employee protections, as well as two proposed California laws meant to further guide against breastfeeding discrimination.

Federal Laws

Pregnancy Discrimination Act (PDA) – Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), prohibits discrimination based on an employee currently being pregnant, as well as post pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth. In other words, while the PDA focuses on pregnant employees it does provide some protection for employees who are breastfeeding or nursing. In 2015 the Equal Employment Opportunity Commission (EEOC) officially adopted the position that lactation is protected by the PDA.  Accordingly, failure to allow for time to express breastmilk could result not only in FLSA violations, but also a discrimination lawsuit under the PDA. Further, under the PDA, employers may not engage in adverse employment actions on the basis of an employee’s lactation needs, yet the PDA does not require special accommodations.

Fair Labor Standards Act (FLSA) – The Patient Protection and Affordable Care Act (ACA) modified the Fair Labor Standards Act (a law that establishes basic job protections like minimum wage and overtime pay) to require that covered employers provide eligible employees with the right to pump breast milk on the job. Under the Nursing Mothers Provision, for up to one year after a child’s birth, covered employers must grant eligible employees 1) reasonable break time to express breast milk for a nursing child for one year after the child’s birth; and 2) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used to express breast milk. The law also protects workers from retaliation (like reassignment to a less desirable job, taking away job duties or benefits, or firing) for asserting their rights or filing a complaint about these issues, if they seek to assert these rights on the job.

State Laws  breastfeeding discrimination

California has its own requirements for how many employees an employer must have to be subject to FLSA’s mandatory accommodations. California employers with fewer than 50 employees are not subject to the FLSA break time requirement for nursing mothers if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply. California law requires employers to provide a reasonable amount of break time to accommodate employees and make reasonable efforts to provide the employee with a room, other than a toilet stall, in close proximity to the employee’s work area, to express milk in private.

Several California jurisdictions have adopted their own workplace policies in this area.  For example, San Francisco’s Lactation in the Workplace Ordinance went into effect on January 1, 2018, and requires businesses to provide employees with breaks and a designated location for lactation. Employers must also implement policies that notify employees of their right to an accommodation for lactation. The ordinance also requires newly constructed or renovated buildings designated for certain uses to include lactation rooms, and amends the San Francisco building code to specify technical specifications of lactation rooms.

Proposed Bills in the California Legislature

There are currently two proposed bills in the California legislature that would expand employer obligations for providing nursing accommodations.

Assembly Bill 1976 by Assemblywoman Monique Limón, amends current law to specify that employers have to make a reasonable effort to provide a room “other than a bathroom” (not just other than a “toilet” stall) to accommodate such employees. On April 19, AB 1976 was referred to the Senate Committee on Labor and Industrial Relations.

Senate Bill 937 by Senator Scott Weiner would require employers to provide a lactation room (other than a bathroom) that shall be “in proximity to the employee’s work area, shielded from view, and free from intrusion.” SB 937 also specifies that the lactation room must (1) be safe, clean, and free of toxic or hazardous materials, (2) contain a surface to place a breast pump and personal items, (3) contain a place to sit, and (4) have access to electricity.  The bill also requires employers to provide access to a sink with running water and a refrigerator in close proximity to the employee’s workspace. SB 937 also specifies requirements for employers with fewer than five employers, as well as compliance requirements for employers with multitenant buildings. On April 18, SB 937 was re-referred to the Senate Committee on Transportation and Housing for a hearing on April 24.

California Employment Lawyers

We will keep you posted on AB 1976 and SB 937 as these bills develop in the legislature. In the meantime, if you feel you have not been afforded the proper accommodations or the breaks you are entitled for breastfeeding or lactation, don’t hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Should you have questions about your rights as a nursing mother, call and speak to an experienced California lawyer toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

Protections Against Employment Discrimination

Employment Discrimination 

Employment discrimination occurs when an employee or job applicant is treated unfavorably because of his or her race, skin color, national origin, gender, disability, religion, or age. It is illegal to discriminate in any facet of employment, so workplace discrimination extends beyond hiring and firing and encompasses nearly every employment decision, from applications and interviews to assignments and transfers, promotions, pay, and benefits.

In addition to state laws, numerous federal laws make employment discrimination illegal.

  1. Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in hiring, discharge, promotion, referral, and other facets of employment, on the basis of race, color, national origin, sex, or religion. This is enforced by the Equal Employment Opportunity Commission (EEOC).
  2. Americans with Disabilities Act (ADA) – The ADA makes it unlawful to discriminate against people with a disability, a record of a disability, or who are regarded as having a disability.
  3. Pregnancy Discrimination Act (PDA) – Employers are required to handle pregnancy in the same way that they would handle a temporary illness or other non-permanent condition that would necessitate special consideration. Pregnancy, childbirth, and related medical conditions must be treated the same as any other medical condition with respect to leave policies, health insurance, job assignments, etc. for both employees and job applicants.
  4. Federal contractors and subcontractors must take affirmative action to guarantee equal employment opportunity without regard to race, religion, gender, or national original when hiring or in the workplace. these factors. Executive Order 11246 is enforced by the Office of Federal Contract Compliance Programs (OFCCP).

Examples of employment discrimination include, but are not limited to: employment discrimination California lawyer

  • Denying select employees from receiving benefits
  • Discriminating when selecting employees for layoffs
  • Using protected classes (e.g. age, race, color) when issuing promotions
  • Paying equally-qualified employees different salaries due to race, age, religion, etc.
  • Excluding potential employees during job advertisements and recruitment
  • Denying certain employees the ability to use company facilities

Speaking with legal counsel is the right action to take if you are in one of these protected classes and feel you have been a victim of discrimination. The links below provide more information about different types of employment discrimination and the ways leading employment lawyers at Kingsley & Kingsley can assist you with your specific situation.

The California lawyers with Kingsley & Kingsley have the experience, ability, and desire to successfully navigate the legal process with you.  For a free initial consultation, don’t hesitate to call our toll free number (888) 500-8469 or click here to contact us regarding your case.

Kingsley & Kingsley
16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

disability discrimination

Cases Illustrating Expanded Protections Against Discrimination

Disability Discrimination, Retaliation and Sexual Harassment 

Protecting employees from workplace discrimination and retaliation continue to be a primary focus for both California courts and the legislature. The following case recaps provide a glimpse into some of the decisions regarding discrimination and retaliation. 

Discrimination and Retaliation

  • Aviles-Rodrigues v. Los Angeles Community College District – The Second Appellate District reversed previous judgment and held that a professor denied tenure has one year from the last date of his employment, and not from the prior notification of denial of tenure, to file a complaint with the Department of Fair Employment and Housing (DFEH). This case involved a review committee’s denial of tenure for a professor, who claimed that the denial was based upon his race.
  • Husman v. Toyota Motor Credit Corp. – Joseph Husman alleged sexual orientation discrimination based on the “perception he was too gay” and retaliation for alleged criticisms he made concerning Toyota’s commitment to diversity. A trial court sided with Toyota on both retaliatory and discrimination claims, but an appellate court reversed the latter discrimination decision. While Toyota had non-discriminatory reasons for the plaintiff’s termination, the plaintiff provided evidence that a manager made negative comments regarding his sexuality and ridiculed him for essentially being “too gay.” Based on that, the court determined that discrimination could have been a substantial motivating factor in the employee’s discharge, and sent the case back to the lower court for a trial on the merits.
  • M.F. v. Pacific Pearl Hotel Management. LLC – This case involved an engineering manager’s failure to remove an intoxicated trespasser from the Pacific Pearl Hotel and to inform staff of the trespasser’s presence. The lack of communication and failure to check on all housekeeping staff led to the assault and rape of a housekeeper by a drunk non-employee trespasser that the employer knew or should have known was on the premises and had aggressively propositioned other employees prior to the attack. The appellate court reversed and remanded the superior court’s dismissal of a claim under the California Fair Employment and Housing Act (FEHA), and confirmed that FEHA allows an employee to sue an employer for sexual harassment at the hands of nonemployees.

Medical Leave and Reasonable Accommodations 

A couple of cases exemplify appellate courts opinions regarding disability discrimination and medical leave for private and public employees.
Bareno v. San Diego Community College District – The California Court of Appeal issued a decision in favor of an employee of San Diego Miramar College who was released for “job abandonment” while out on medical leave. The court reversed the trial court’s judgment in favor of the College, holding a reasonable fact-finder could conclude the College retaliated against the employee for taking medical leave protected under the California Family Rights Act (“CFRA”). The result of this case issued a reminder for employers to check whether an employee is off work for a medical reason before terminating on the basis of job abandonment. 

disability discrimination

Featherstone v. Southern California Permanente Medical Group – This case determined that an employer has no obligation to provide reasonable accommodations if it has no knowledge of an employee’s disability. Plaintiff Ruth Featherstone was the employee who resigned, yet later withdrew her resignation, alleging her severe sinusitis, surgery and medication to treat the illness made her act erratically. The California Court of Appeal for the Second District held that refusing to allow an employee to rescind her voluntary resignation does not constitute an adverse employment action.

Conclusion

The preceding cases highlight the intricacies California employers must face when dealing with employee disabilities, as well as potential discrimination and sexual harassment. Should you have questions about ADA, disability discrimination, or sexual harassment don’t hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

California Law Firm Los Angeles

Recap of 2018 California Employment Law Changes

california employment lawCalifornia Employment Law Changes Enacted by the 2017 California Legislature

The California Legislature once again enacted numerous labor and employment laws addressing discrimination, harassment, compensation, hiring, and parental leave. A snapshot of each of these laws and their effective dates are summarized below. Employers with operations in California should understand how these laws change their policies, procedures and employee notification processes.

Hiring Practices and Enforcement

AB 168 bars employers from requesting, orally or in writing, the pay history of job applicants (either directly or through an agent, such as a third-party recruiter). Also, employers may not rely on salary history information as a factor in determining whether to hire the applicant or how much to pay the applicant. Applicants may voluntarily and without prompting disclose their salary history to a prospective employer. Effective January 1, 2018

Ban the Box

AB 1008 prohibits employers with at least five employees from asking, orally or in writing, job applicants about criminal conviction histories until a conditional offer of employment has been made. There are limited exemptions for certain positions, such as those where a criminal background check is required by federal, state or local law. AB 1008 also prohibits California employers from considering, distributing or disseminating information about certain types of arrests or convictions while conducting a background check following a conditional offer of employment. Once an employer has made a conditional offer of employment, it may seek certain criminal history information. However, before denying employment because of a criminal conviction, AB 1008 outlines several  specific steps that must be followed. Employers in Los Angeles and San Francisco are also required to comply with the local “Fair Chance” ordinances, which have additional requirements. Effective January 1, 2018

Workplace Harassment

SB 396, the Transgender Work Opportunity Act, requires California employers with 50 or more employees to expand the two hours of sexual harassment prevention training such employers are already required to provide under the Fair Employment and Housing Act to supervisors every two years (or within six months after an employee becomes a supervisor) to include training on gender identity, gender expression and sexual orientation harassment. Effective January 1, 2018

Retaliation and Discrimination 

SB 306 authorizes the Division of Labor Standards Enforcement (DLSE) to investigate an employer – “with or without receiving a complaint” – when the Labor Commissioner suspects retaliation or discrimination against a worker during a wage claim or other investigation. The Labor Commissioner will also be allowed to seek injunctive relief (that the employee be reinstated pending resolution of the claim) upon a mere finding of “reasonable cause” that a violation of the law has occurred. That injunctive relief, however, would not prohibit an employer from disciplining or firing an employee for conduct that is unrelated to the retaliation claim. Effective January 1, 2018

Expansion of Fair Pay Act

AB 46 extends California’s Fair Pay Act to cover public employers. The Fair Pay Act prohibits wage discrimination on the basis of gender, race and ethnicity and previously only covered private employers. Effective January 1, 2018

Gender Discrimination

AB 1556 revises California’s Fair Employment and Housing Act by deleting gender-specific personal pronouns (such as “female,” “she” and “her”) in California’s anti-discrimination, anti-harassment, pregnancy disability and family/medical leave laws and replacing them with gender-neutral terms such as “the person” or “the employee.” Effective January 1, 2018

Worksite Immigration Protections

AB 450, or Immigrant Worker Protection Act, provides workers with protection from immigration enforcement while on the job and imposes varying fines from $2,000 to $10,000 for violating its provisions. Per AB 450, employers cannot give federal immigration enforcement agents access to non-public areas of a business without a judicial warrant, nor can they provide enforcement agents access to employee records without a subpoena or judicial warrant. Effective January 1, 2018

Parental Leave for Small Employers

SB 63, the New Parental Leave Act (NPLA), requires small businesses with 20 or more employees to provide eligible employees up to 12 weeks of unpaid, job-protected leave to bond with a new child. New Parental Leave must be taken within one year of the child’s birth, adoption or foster care placement. Effective January 1, 2018

Prohibited Discrimination Against Veterans

AB 1710 expands the current protections for members of the armed services by prohibiting discrimination in all “terms, conditions, or privileges” of employment. This legislation conforms state law to the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) by protecting service members in civil jobs from hostile work environments. Effective January 1, 2018

Whistleblower Protections for Health Care Facilities

Section 1278.5 of California’s Health and Safety Code prohibits a health facility from discriminating or retaliating against a patient, employee, member of the medical staff or any other health care worker of the health facility because that person has presented a grievance, complaint or report to the facility, as specified, or has initiated, participated or cooperated in an investigation or administrative proceeding related to the quality of care, services, or conditions at the facility, as specified. AB 1102 amends Section 1278.5 to increase the maximum fine for a person who willfully violates the aforementioned provisions from $20,000 to $75,000. Effective January 1, 2018