Head v. Glacier Northwest, Inc.
(9th Cir. Case No. 03-035567)
In employment discrimination action under Americans with Disabilities Act, plaintiff’s own testimony, unsupported by medical or comparative evidence, may suffice to establish triable issue of fact as to whether plaintiff’s ability to engage in a major life activity is impaired.
Comment: Yikes!
I would like to preface this case note by saying that I am Norwegian and we don’t fire people for not being Norwegian, we fire them for being Swedes! (=
Coghlan v. American Seafoods
(9th Cir. Case No. 03-35314)
The gist: When the same person demotes you that just promoted you have to show why they weren’t being racist before.
Plaintiff, who alleged that he was terminated from his employment in commercial fishing by his company’s new owners because he was not of Norwegian birth, was required–to establish prima facie case–to present sufficient evidence to overcome the “same actor inference” of nondiscrimination based on fact that decision to terminate plaintiff was made by same person who had earlier made decisions to hire and promote him. Evidence that employer had, on two occasions, given temporary control of ship to Norwegian-born employee who had less experience than plaintiff was insufficient to overcome inference of nondiscrimination where there was uncontroverted evidence that decision was based on recommendation of non-Norwegian supervisor who felt plaintiff lacked sufficient leadership skills.
I don’t usually blog federal cases, but I found it interesting that the Ninth Circuit agreed to rehear en banc the Harrah’s case. The Bakersfield Californian has more.
The OC Register has this article on piercings/tatoos in the workplace. It’s interesting in that it shows that in Orange County’s tightening labor market that less employers care, while some worry about perception even still.
Question: would discriminating against someone who has a tatoo be illegal, if, say, that person was Polynesian? (The recent Ninth Circuit ruling made it clear that certain appearance requirements are ok, but what about when it’s cultural?)
Plaintiff’s statements that she had a fibroid removed and that she was hoping to become pregnant did not establish that employer was aware of pregnancy, and employee’s statement to employer at Christmas party that “[i]t looks like I get to have one of these,” referring to a baby, was too ambiguous to place employer on notice of pregnancy. (However, the court notes in a footnote that Plaintiff didn’t complain she was fired for attempting to become pregnant.)
2d Dist., Div. 5 No. B174101
(No free advice this Wednesday, I’m off to a conference)
This one is really more for the “interesting and sort of funny” file than for the practice hotsheet. The plaintiff checked the wrong box on her DFEH complaint, and, as a result, the Court of Appeal held that her case was dead.
While it’s amazing how much a little checkbox can matter, it’s also amazing how much courts can disagree. Courts have gone the other way too.
QUESTION
Under the Equal Pay Act, does someone hired on the same day, with the same responsibilities as me have to be paid the same amount?
ANSWER
Only if the reason for paying you differently is done on the basis of your gender. For purposes of other laws, any illegal discriminatory basis may apply. In general, however, there is no blanket rule.
Disclaimer: These questions are derived from questions I sometimes get, with different facts, laws, and so forth. Every situation is different, so talk to a lawyer if you have questions.
Nexsen Pruet has this advisory on camera phones in the workplace. Apparently, larger employment law firms are successful at drumming up business by scaring the crap out of employers. Here’s their lead-in.
Your company’s confidential documents are being copied. Your biggest competitor has learned your trade secrets. Photographs of one of your supervisors disciplining an employee are appearing on a union organizing website. And, to make matters worse, a sexual harassment charge has just been filed against your company.
Boo! Now, good grief! I’m even getting a tick from reading that. Now, I’m not necessarily saying that you shouldn’t have a camera phone policy. But, I think that each of those threats would be covered by a well-drafted policy manual that doesn’t list each and every possibility. You run the risk of listing so many things that the list looks exhaustive. And then when the next gizmo comes along, everyone thinks, hey, it’s not on the list!
What if people don’t know they’re not supposed to do those things without explicit mention of the phone? Same problem. They won’t make that connection with the next gizmo. Focus on the behavior that’s the problem, not every instrumentality of it. Keep sensitive documents secure. Keep meetings confidential if they are sensitive, and make sure you strictly enforce your sexual harassment policies. After all, do you really want an employee to say, “but I didn’t take that picture of her butt with my camera phone! It was my camera!”
I haven’t found a case I thought was worth posting in a while, but I thought this one at least added something to the parameters of the FEHA.
. . . [W]e conclude that the trial court correctly sustained the Town’s demurrer without leave to amend because Mendoza was an uncompensated volunteer and not an “employee” for purposes of imposition of liability for unlawful employment practices under FEHA.
Mendoza v. Town of Ross, 1st Dist. No. A103878 at 1.
The Opinion goes on to clarify the source of the definition of “employee” for FEHA purposes:
More helpful is the definition of “employee” contained in regulations enacted by the Department of Fair Employment and Housing (the Department) to implement the FEHA. The Department, which was created by the FEHA (§ 12901), defines an employee as “[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” (Cal. Code Regs., tit. 2, § 7286.5(b).) While the interpretation of a statute is ultimately a question of law, appellate courts will defer to an administrative agency’s interpretation of a statute or regulation involving its area of expertise, unless the interpretation flies in the face of the clear language and purpose of the interpreted provision. (Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1104.) Far from being in conflict, section 7286.5, subdivision (b) of title 2 of the California Code of Regulations fills a gap in the governing statute, and provides a workable definition of who may be considered an employee, and thus entitled to the protection of the FEHA.Thus, on its face, the FEHA confers employee status on those individuals who have been appointed, who are hired under express or implied contract, or who serve as apprentices.
Id. at 6.
Yahoo (via LaborProf Blog) reports that “One out of five (20 percent) U.S. workers claims that racial or ethnic discrimination exists in the workplace, according to a national survey by Hudson, reporting that they know of someone who has been denied a job, increased pay or promotion because of their ethnicity. That figure jumps to 31 percent for African-American workers, yet drops to 18 percent among white employees.”
I hope you’ve updated your employee handbook lately and have trained your supervisors on how to deal with these situations.
Lujan v. Minagar – Firing someone because you think they’re about to report you violates Labor Code Sec. 6310, which prohibits termination of employee in retaliation for reporting violations of Occupational Safety and Health Act.
Lonicki v. Sutter Health Central - Employee who was performing nearly identical duties for two employers but claimed to be unable to continue doing so due to medical condition could not take California Family Rights Act leave from one position and not the other. Where sole documentation of purported medical condition was note from family nurse practitioner saying employee would be out of work until a specified date for “medical reasons,” employee did not provide satisfactory evidence of “qualifying medical condition,” and employer was not required to invoke “three-opinion” procedure as a prerequisite to litigating CalFRA claim.
The Chronicle has this personal story piece on the hotel lockout.
Class-action age discrimination suit against Vons coming soon? The Fresno Bee reports.
Unemployment Insurance Appeals Board, Workers Compensation Appeals Board, Agricultural Labor Relationsh Board, and Cal-OSHA official told “they’ll be back” from 9-5. The LA Times reports.
A group of injured workers has filed a legal challenge to the recent workers’ compenstaion reform. The LA Times reports.
Currently, an injured worker is allowed to choose any doctor after the first month of treatment is completed. After Jan. 1, a worker will have to pick from a pool of doctors who belong to tightly controlled physician networks organized by companies or insurers.The suit maintains that the new rule should be applied only to people hurt on the job after Jan. 1. The suit filed in Sacramento by the California Applicants’ Attorneys Assn. names as defendants the state Division of Workers’ Compensation and Director Andrea Hoch.
Fair Employment and Housing Act amendment imposing personal liability on nonsupervisory employees for harassment of coworkers, following Supreme Court ruling that there was no such liability under existing law, changed rather than clarified the law notwithstanding legislative declaration to the contrary.
The Supreme Court has some very harsh words for legislative overreaching in terms of retroactivity. Let’s see if this affects the Salazar II / Carter dispute.
Supreme Court No. S121568.
The Governor did not veto a bill (AB 1825) requiring sexual harassment training for supervisors in companies with more than 50 employees. It does not go into effect until 2006. [CLEL notes that anyone expecting a veto on this one only need look back to the recall campaign - does he really want to revive the groping meme? Plus, how many companies with 50 or more employees aren't already doing this? Apparently not enough for Gov. Schwarzenegger to think this is a "job killer."]
Back to the front … in San Francisco, the hotel strike continues, as the SF Chronicle reports. You’ll never guess what the sticking point is. . .
The hotels have asked for a five-year contract that would sharply increase
workers’ health insurance premiums. The union wants a two-year contract that would expire in 2006, which would synchronize its next round of negotiations with talks in other cities.
Health insurance? I can’t imagine that. CLEL doesn’t have a solution for this, but recognizes one is needed!
When the employer failed to reasonably accomodate its Jehova’s Witness employee’s wish to go to a religious convention that was held to be a form of study or worship, without reason, the Court held that the employer was in violation of the FEHA.
Judgment REVERSED.
Norcal grocery negotiations are ongoing, looking to avoid Socal situation. The San Jose Mercury News reports.
The San Diego Union-Tribune reports on the on-going problem of workers returning from Iraq to find their jobs gone.
The rest of the country is having issues with the new OT rules. The WSJ (sub. req’d) reports.
And, the most important issue facing the Governor this month: The Ferret Liberation Act of 2004!
This case should teach all who read it the value of a good legislative intent research firm.
The Court of Appeal held that the legislative amendment rejecting the Salazar interpretation of sexual harassment liability under FEHA was not retroactive. The Court held also that this amendment was not a mere clarification, but, rather was a change in the law because it changed the possible liable parties to only employers and the possible bases of harassment from any FEHA-prohibited kind to only sexual harassment.
We find that applying the amendment retroactively is constitutionally objectionable. Constitutional considerations of due process require that citizens be fairly apprised of laws affecting their conduct. Here, the import of the amendment is to impose substantial new obligations on employers, and to impose such liability, without clear notice, for conduct which was already completed in the past.
Judgment of of the trial court is REVERSED.
The Fair Employment and Housing Act, Government Code sections 12900 et seq. (FEHA), prohibits an employer from firing a worker in retaliation for the worker’s complaining about incidents of sexual harassment in the workplace. (Gov. Code, § 12940, subds. (h), (j).) An employer can defeat such a claim by showing that it acted not in response to the worker’s complaints but for legitimate, nonretaliatory reasons. This case presents the question whether an employer may be liable for retaliatory discharge when the supervisor who initiates disciplinary proceedings acts with retaliatory animus, but the cause for discipline is separately investigated and the ultimate decision to discharge the plaintiff is made by a manager with no knowledge that the worker has engaged in protected activities. We hold that so long as the supervisor’s retaliatory motive was an actuating, but-for cause of the dismissal, the employer may be liable for retaliatory discharge.
Summary Judgment in favor of defendant REVERSED.
SFgate has this report.
Would-be California medical students with learning disabilities filed a discrimination suit Monday saying their prospects of becoming doctors are being thwarted because they aren’t given enough time on the medical school entrance exam.
The suit arises under California law in Alameda Superior Court.