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

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.)

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

workplace discrimination

Google Accused Of Workplace Discrimination Against White Conservative Men

Workplace Discrimination Case

The engineer who was fired by Google after he criticized its diversity policies last August claims in a lawsuit that he and others at the internet giant faced harassment and workplace discrimination due to their conservative political views. This latest lawsuit against Google comes on the heels of a lawsuit brought against the company in December citing violations of the California Equal Pay Act. That suit alleges that Google discriminates against its women employees by systematically paying them lower compensation than their male peers for performing substantially similar work under similar working conditions. 

Damore v. Google, LLC. (Cal. Sup. Ct., Santa Clara Cty.)

On January 8, former Google engineer James Damore, who famously circulated a memo about Google’s so-called “ideological echo chamber,” and a fellow former Google employee filed a discrimination class action complaint against Google on behalf of all employees of Google discriminated against “due to their perceived conservative political views,” “their male gender,” and/or “their Caucasian race.” 

The other ex-Googler named as a plaintiff is David Gudeman, who says he was an engineer for three years until he was wrongfully terminated in December 2016. The two men claim they were “ostracized, belittled and punished for their heterodox political views, and for the added sin of their birth circumstances of being Caucasians and/or males.”

The complaint alleges the following:

  • that employees who deviated from the “majority view” at Google regarding issues such as “‘diversity’ hiring policies, ‘bias sensitivity,’ or ‘social justice,’” were singled out, mistreated, and systematically punished and terminated from Google.
  • that the company’s “open hostility” to conservative thought leads to discrimination in hiring, promotion, and termination decisions on the basis of race and gender because of the “extreme” lengths Google allegedly goes to in taking race and/or gender into consideration as determinative hiring factors, to the detriment of white males.
  • that several of Google’s diversity initiatives, including, among other things, a “Diversity and Inclusion Summit” and a “diversity training class,” as evidence of bias against conservative white men.
  • “Google’s current method of increasing diversity resulted in what is known as reverse discrimination, because Caucasian and Asian males were not being selected for jobs and promotions due solely to their status as non-females or non-favored minorities.”

Damore’s Attorney

workplace discrimination

Damore’s attorney is Harmeet Dhillon, a civil rights lawyer who has taken on cases that push back against the Bay Area’s progressive tendencies. As part of a press conference, Dhillon, a California representative for the Republican National Committee, elaborated more on the very lengthy complaint and argued that her current clients are far from alone. Dhillon suggested that she had spoken with “dozens” of employees at Google to formulate the lawsuit and that she expects there will be “future lawsuits” to explore, as well.

California Employment Law

Protected classes called out in both state and federal statutes, such as sex, religion, race, etc. are broadly defined. As such, every person can face discrimination, and it is just as unlawful if targeted against white men as it would be against any other group. As long as an employee is negatively impacted because of his or her membership in a protected class, that counts as discrimination and could form the basis for a lawsuit. Further, California law also bans private employers from discriminating against workers due to their political views, affiliations, or activities.

If you are living in Los Angeles, San Francisco, Sacramento, or San Diego and feel you have been a victim of workplace discrimination, contact Kingsley & Kingsley to speak with one of our experienced lawyers.

Kingsley & Kingsley

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

eeoc strategic plan

EEOC Still Seeking Input on FY 2018-2022 Strategic Plan

EEOC Strategic Plan  eeoc strategic plan

The U.S. Equal Employment Opportunity Commission (EEOC) is still seeking public comment on its draft Strategic Plan that covers Fiscal Years 2018 to 2022. The draft plan has not been approved by the Commission as comments are due by 11:59 pm ET on January 8, 2018.  The draft plan can be found at Regulations.gov. According to the EEOC, the Strategic Plan serves as a framework for the Commission in achieving its mission through the strategic application of the EEOC’s law enforcement authorities, preventing employment discrim­ination and promoting inclusive workplaces through education and outreach, and organizational excel­lence. 

Every four years, Congress requires executive departments and agencies to develop and post a strategic plan on their public website. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information in the future. The Strategic Plan for Fiscal Years 2018-2022 establishes a framework for achieving the EEOC’s mission to “Prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace,” so that the nation might soon realize the Commission’s vision of “Respectful and inclusive workplaces, with equal employment opportunity for all.”

EEOC Strategic Objectives

To accomplish its mission, the EEOC is committed to pursuing the following strategic objectives and outcome goals:

  1. Combat and prevent employment discrimination through the strategic application of EEOC’s law enforcement authorities. The corresponding outcome goals are: 1) Discriminatory employment practices are stopped and remedied, and victims of discrimination receive meaningful relief; and 2) Enforcement authorities are exercised fairly, efficiently, and based on the circumstances of each charge or complaint. 
  2. Prevent employment discrimination and promote inclusive workplaces through education and outreach. The corresponding outcome goals are: 1) Members of the public understand the employment discrimination laws and know their rights and responsibilities under these laws; and 2) Employers, unions, and employment agencies (covered entities) prevent discrimination, effectively address EEO issues, and support more inclusive workplaces.
  3. Organizational Excellence. The corresponding outcome goals are: 1) A culture of excellence, respect and accountability; and 2) Resources align with priorities to strengthen outreach, education, enforcement and service to the public. The plan also identifies strategies for achieving each outcome goal and identifies 12 performance measures (with yearly targets) to track the EEOC’s progress as it approaches FY 2022.

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