Employment Law

California Appellate Panel Sets Standard for Disability Discrimination Jury Instructions

Why it matters

How should a California trial court properly instruct a jury regarding an employer's intent to discriminate against a disabled defendant and what role does animus play in the instruction? This question was at the heart of a recent decision from a California appellate court involving a county employee who sued after he was removed from his job as a bailiff and placed on an unpaid leave of absence. He claimed the County's incorrect assessment that he could not safely perform his duties, even with reasonable accommodation, constituted disability discrimination. The trial court instructed the jury that proof of employer animus or ill will towards the employee was required. Accordingly, language was included in the instructions that jurors needed to find that the employer took the actions it did with the intent to discriminate against the employee based on a perceived disability. The appellate court, however, reversed. The plaintiff could prove discriminatory intent by showing that his actual or perceived disability was a "substantial motivating factor/reason" for the employer's decision to place him on a leave of absence, the court said, even if the employer's mistake was reasonable and made in good faith. Because the jury instruction actually given was prejudicial, the panel remanded the claim for a new trial.

Detailed discussion

The County of Stanislaus hired Dennis Wallace in 1997 as a deputy sheriff. Ten years later, he injured his left knee and filed a workers' compensation claim for the injury. He later reinjured the same knee on the job, requiring surgery in 2008. Wallace took a paid leave of absence after the surgery and subsequently returned to light duty.

The following year he took additional paid leave because of the knee injury and returned to a light-duty assignment in the property and evidence room with restrictions on climbing, running, and walking on uneven ground. After a few months, Wallace took another paid leave because of his knee.

Wallace returned again, this time working as a bailiff. The County requested Wallace to undergo a medical exam with an orthopedic surgeon, who issued a report containing numerous limitations on activity. In response, county officials met with Wallace to discuss looking at other positions that could better accommodate his work restrictions and removed him from his assignment as a bailiff.

Wallace insisted that he could perform the functions of a bailiff and was only interested in positions providing certain retirement benefits. The County, however, placed Wallace on an unpaid leave of absence. Wallace thereafter filed suit alleging violations of California's Fair Employment and Housing Act (FEHA) based on disability discrimination, failure to accommodate his disability, failure to engage in the interactive process, and failure to prevent discrimination.

At trial the parties disagreed over how to instruct the jury on the disability discrimination claim. The trial court told counsel that it read the case law as requiring employee plaintiffs to "prove that the actions taken by the employer were done with the intent to discriminate," which the court equated with "animus." The judge proposed modifying the instruction to read that "the County took the action in order to discriminate against the plaintiff."

Wallace's attorney disagreed with the proposed language, while counsel for the employer supported it, arguing that intent and animus have to be shown in any discrimination cause of action alleging disparate treatment (i.e., intentional discrimination). The court sided with the employer and modified the jury instruction to include the language it had proposed.

The appellate panel reversed, finding that the instruction given was incorrect and prejudicial. The proper standard regarding employer intent or motivation in discrimination actions was set forth in a 2013 decision from the California Supreme Court in Harris v. City of Santa Monica, the court explained.

"Under Harris, Wallace could prove the requisite discriminatory intent by showing his actual or perceived disability was a 'substantial motivating factor/reason' for County's decision to place him on a leave of absence," the court said. "California law does not require an employee with an actual or perceived disability to prove that the employer's adverse employment action was motivated by animosity or ill will against the employee. Instead, California's statutory scheme protects employees from an employer's erroneous or mistaken beliefs about the employee's physical condition. In short, the Legislature decided that the financial consequences of an employer's mistaken belief that an employee is unable to safely perform a job's essential functions should be borne by the employer, not the employee, even if the employer's mistake was reasonable and made in good faith."

Pursuant to California law, it is unlawful for an employer "to discriminate against" an employee "because of" the employee's physical disability. The phrase "because of" is ambiguous as to the type or level of an employer's intent and the connection between that motivation and the decision to treat the disabled person differently, the panel wrote.

The court in Harris discussed the employer's motivation and the link between consideration of the plaintiff's physical condition and the adverse employment action without using the terms "animus," "animosity," or "ill will," the appellate panel wrote. "The absence of a discussion of these terms necessarily implies an employer can violate [the statute] by taking an adverse employment action against an employee 'because of' the employee's physical disability even if the employer harbored no animosity or ill will against the employee or the class of persons with that disability," the court said.

"Based on Harris, we conclude that an employer has treated an employee differently 'because of' a disability when the disability is a substantial motivating reason for the employer's decision to subject the employer to an adverse employment action," the panel concluded.

Prejudice occurred in Wallace's case with the use of the improper instruction, the court said. And "the evidence easily demonstrates a reasonable probability that a properly instructed jury would have found Wallace's disability was a substantial motivating reason for County's decision to remove him from his job as bailiff," the panel held. "Indeed, the evidence allows this court to find as a matter of law that Wallace established the substantial-motivating-reason element of his disability discrimination cause of action."

The panel remanded the case for a trial on the limited issues of the amount of Wallace's economic damages and the existence and amount of noneconomic damages (including emotional distress and mental suffering) caused by the employer's decision to place him on a leave of absence.

To read the opinion in Wallace v. County of Stanislaus, click here.

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EEOC Takes a Position on Position Statements

Why it matters

The Equal Employment Opportunity Commission (EEOC) has developed a new nationwide policy on position statements, the agency said last week in a press release announcing "Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses From Charging Parties." From now on, an employer's position statement and supporting documentation submitted to the EEOC in response to a charge of discrimination will be provided to the employee charging party upon request. If an employer relies on confidential information (defined by the agency to include sensitive medical information, Social Security numbers, and trade secrets information, among other data), then that information should be provided by employers in a separate attachment to the position statement labeled with the type of information included ("Sensitive Medical Information," for example) to avoid being provided to the charging party employee. The new policy—which previously applied in some but not all agency offices—applies retroactively to all EEOC requests for position statements made on or after January 1, 2016. "The new procedures provide for a consistent approach to be followed in all of EEOC's offices, which enhances service to the public," the agency wrote in a press release about the changes. "The procedures will also provide EEOC with better information from the parties to strengthen our investigations."

Detailed discussion

The EEOC announced a new nationwide policy on position statements recently, putting employers on notice that their position statement will be shared—in full—with charging parties, with an exception allowed for separate attachments specifically designated as including confidential information.

Position statements and supporting documents are requested by the EEOC during its investigation of a charge. "It is in the Respondent's interest to provide an effective position statement that focuses on the facts," the EEOC advised. "An effective position statement is clear, concise, complete and responsive. It should clearly explain the Respondent's version of the facts and identify the specific documents and evidence supporting its position. A position statement that addresses all the allegations in the charge and provides relevant evidence to support the Respondent's position can help EEOC accelerate the investigation and tailor its requests for additional information."

Generally, respondent employers have 30 days to gather the information requested and submit a position statement and attachments to the EEOC.

According to "Nationwide Procedures for Releasing Respondent Position Statements and Obtaining Responses from Charging Parties," the EEOC will now "provide the Respondent's position statement and non-confidential attachments to Charging Parties upon request and provide them an opportunity to respond within 20 days."

To protect confidential information from being shared with a charging party, the agency provided specific instructions to employers. If an employer respondent relies on confidential information in its position statement, that information should be provided in a separate attachment labeled with the type of confidential information included, along with an explanation "justifying the confidential nature of the information contained in the attachments," the EEOC said. The EEOC has made it clear that it will not accept blanket or unsupported assertions of confidentiality.

In a question-and-answer document for employers, the EEOC delineated a list of what the agency considers confidential information: sensitive medical information (not including the charging party's medical information); Social Security numbers; confidential commercial or financial information; trade secrets information; nonrelevant personally identifiable information of witnesses, comparators, or third parties (examples include personal e-mail addresses and phone numbers, home addresses, and a date of birth in cases other than those involving age discrimination); and any reference to charges filed against the employer by other employee charging parties.

The charging party's response to the employer's position statement will not, however, be provided by the EEOC to the employer during the investigation. "The Commission is releasing the first formal document received from the Charging Party, the Charge, and the first formal document received from the Respondent, the Position Statement," the agency explained. "No other disclosures are contemplated at this time. If during the course of the investigation, EEOC determines that it needs additional evidence from the Respondent, including information to address the Charging Party's rebuttal to the position statement, the investigator will contact the Respondent". According to the EEOC, this "supports effective and efficient management of the charge workload to focus the agency's resources where government enforcement can have the greatest impact."

Taking immediate effect, the new policy also applies retroactively to all EEOC requests for position statements made on or after January 1, 2016.

To read the EEOC's press release about the new policy, click here.

To read the question-and-answer document for respondents, click here.

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Court Finds Telling Coworker About Chest Pains May Trigger FMLA Protections

Why it matters

Employers, beware. Telling a coworker about chest pains may be sufficient notice for an employee to trigger the protections of the Family and Medical Leave Act (FMLA), a Maryland federal court has ruled. A call to ask an employee truck driver to report to dispatch woke him up. Upset, the employee complained to a manager and the two disagreed about a separate payment issue. After arriving at work and having a second interaction with the manager, the driver began to experience chest pains and shaking in his hands. Believing he might be having a heart attack—and that he was unable to drive his route from Baltimore to North Carolina—the driver asked a coworker to tell a supervisor he was leaving because of chest pains. Because his abrupt departure violated company policy, the manager recommended that the driver be terminated. Before the driver was notified of this, however, he forwarded a note from his doctor stating that he needed to take some days off work due to his symptoms. When the driver was subsequently terminated, he sued for FMLA interference and retaliation. The truck company moved for summary judgment to get the case dismissed. But the court denied the motion, finding that telling a coworker about chest pains could be sufficient notice of a need for a protected FMLA leave.

Detailed discussion

From 2002 until October 26, 2012, Randy Greene was employed as a truck driver by YRC, Inc. In 2011, Greene began receiving treatment for chronic high blood pressure and high cholesterol.

According to Greene, he was asleep when his phone rang on October 25, 2012. A supervisor was calling Greene to request that he appear at the company's Baltimore Terminal at 1 a.m. on October 26 to receive a dispatch along his regular Baltimore to Charlotte route. Although he was irritated about being woken up, Greene said he would accept the dispatch.

Greene then called the Terminal manager to complain about the call waking him up and stated that he was entitled to payment for an additional 15 minutes from a previous trip. The manager said he would talk to the supervisor about waking Greene up but said that Greene was not entitled to the additional pay demanded.

Greene arrived at the Terminal about midnight and went to speak with the manager, who refused to discuss the payment issue. Greene accused the manager of showing "hostility" and was upset by the interaction, experiencing chest pains, stomach pains and shaking hands. Although he tried to calm down—and accepted his dispatch—his conditions worsened as he tried hooking the trailer up to his truck.

Thinking he might be having a heart attack, Greene decided that he could not drive all the way to North Carolina. Feeling too ill to go in search of a supervisor, he asked a nearby coworker to inform the manager that he was having chest pains and needed to leave. Greene drove home and called the manager from the car to confirm that the coworker had delivered the message.

Pursuant to a collective bargaining agreement, the manager recommended that Greene be terminated for a "voluntary quit" for violating the requirement to personally notify a supervisor before leaving because of illness.

Unaware of this recommendation, Greene visited his doctor at 1:15 p.m. on October 26. Finding that the driver's blood pressure was elevated, the doctor wrote a note that Greene was having "health issues" and should be excused from work for a few days. Greene faxed the note to YRC later that afternoon.

At 4 p.m. the manager called Greene to terminate his employment. Greene filed suit alleging that YRC illegally interfered with his rights under the FMLA and retaliated against him in violation of the statute. Both parties moved for summary judgment.

YRC conceded that if a jury accepted Greene's version of the facts, it could support a finding that he was suffering from a serious health condition. "That is, he felt terrible, didn't know if he was having a heart attack, and told a coworker … to inform [the manager] that he was having chest pains and needed to leave," U.S. District Court Judge Marvin S. Garbis wrote. "Such notice, including an indication that Greene was experiencing chest pains, can be found sufficient to put YRC on inquiry notice that Greene may require FMLA leave."

And once an employee has provided at least verbal notice of a serious health condition sufficient to alert the employer to the fact that the protections of the FMLA may apply, an employer "'should inquire further to ascertain whether it is FMLA leave that is being sought and to obtain further details of this leave,'" the court said, denying YRC's motion for summary judgment.

The court also denied Greene's motion, however, finding that YRC presented evidence that a reasonable jury could find that the plaintiff left the job site for a reason other than a serious health condition, such as anger due to his interactions with the manager about his requested additional pay. Greene didn't seek immediate medical care and drove an hour to get home, the court noted, waiting until later in the afternoon for a doctor's visit instead of visiting the emergency room or calling 911. His coworker's testimony was also somewhat inconsistent, stating that he didn't perceive Greene to be having such a physical problem that it prevented him from going into the Terminal to speak with a supervisor.

Finding "no doubt" that genuine issues of material fact prevented summary judgment for either side, the court denied both motions, allowing the case to move forward.

To read the order in Greene v. YRC, Inc., click here.

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California Considers Criminal History in Employment Decisions

Why it matters

Continuing the nationwide crackdown on the use of criminal history as a factor in employment decisions, California's Department of Fair Employment and Housing (DFEH) released proposed regulations for employers with new prohibitions on the practice. In addition to including limits on inquiring about or using four types of criminal history (including an arrest or detention that did not result in conviction) as part of employment decisions, the agency stated that considering criminal convictions may run afoul of state law if it has an adverse impact on individuals in protected categories based on gender, race or national origin. The analysis includes considering factors such as the job position, the geography of the applicant pool, and the type of convictions, the DFEH explained. In addition, the proposed regs would require that employers provide notice to an applicant or employee before taking an adverse action due to a disqualifying conviction and provide a reasonable opportunity to present evidence that the information is factually inaccurate. The DFEH proposal is currently open for public comment.

Detailed discussion

The use of criminal histories in employment decisions has been the target of lawsuits and legislation across the country, from the trend of enacting "ban the box" laws to multiple cases filed by the Equal Employment Opportunity Commission (EEOC) challenging the practices of specific employers in this area.

The DFEH waded into the debate recently with the release of proposed regulations. The "Consideration of Criminal History in Employment Decisions Regulations" would prohibit four types of criminal history from consideration by employers when making decisions such as hiring, promotion, training, discipline, and termination:

"(1) An arrest or detention that did not result in conviction; (2) Referral to or participation in a pretrial or post-trial diversion program; (3) A conviction that has been judicially dismissed or ordered sealed, expunged or statutorily eradicated pursuant to law and (4) A non-felony conviction for possession of marijuana that is two or more years old."

Employers may face other limitations from local or city ordinances, the DFEH noted. (San Francisco, for example, prohibits consideration of offenses other than a felony or misdemeanor and convictions more than seven years old.) And state and local agency employers should remember that they may not ask for any criminal history information until a determination is made that the applicant meets the minimum employment qualifications stated in the notice for the position.

On top of all of these restrictions, the DFEH added concerns about the adverse impact on certain protected groups. "Depending on factors such as the type of convictions considered, the job position, and the geographic bounds of the applicant pool, consideration of other forms of criminal convictions, not enumerated above, may have an adverse impact on individuals on a basis protected by the [Fair Employment and Housing Act (FEHA)], including, but not limited to, gender, race, and national origin."

The proposed regulations establish a burden-shifting framework in such cases, with an adversely affected applicant or employee bearing the burden of demonstrating that the employer's policy of considering criminal convictions has an adverse impact. The burden would then shift to the employer to establish that the policy applied was "nonetheless justifiable" because it was job-related and consistent with business necessity.

This showing by the employer requires "a demonstrable relationship to successful performance on the job and in the workplace" as well as a measurement of the individual's fitness for the specific job, "not merely to evaluate the person in the abstract." The criminal conviction policy must be appropriately tailored and take into account at least three factors, the DFEH said: the nature and gravity of the offense or conduct, the time that has passed since the offense or conduct and/or completion of the sentence, and the nature of the job held or sought.

Employers using bright-line or across-the-board conviction disqualifications must be able to demonstrate that the convictions being used to disqualify have a "direct and specific negative bearing on the person's ability to perform the duties or responsibilities necessarily related to the employment position" or that the employer conducted an individualized assessment of the circumstances or qualifications of the applicants or employees excluded by the conviction screen.

Bright-line policies that do not feature an individualized assessment are subject to a rebuttable presumption that they are not sufficiently tailored to meet the business necessity affirmative defense, the DFEH explained.

If an employer demonstrates that its policy or practice of considering conviction history is job-related and consistent with business necessity, an impacted individual may still prevail under the FEHA by demonstrating that a less discriminatory policy or practice still serves the employer's goals as effectively as the challenged policy or practice without significantly increasing the cost or burden on the employer. As an example of this, the proposed regulations suggested a more narrowly targeted list of convictions or another form of inquiry by the employer.

If an employer elects to take an adverse action based on conviction history, the impacted individual must be given notice of the disqualifying conviction and "a reasonable opportunity" to present evidence that the information is factually inaccurate.

The proposed regulations include an exception for compliance with specific state and federal laws and regulations that prohibit employment of individuals with certain criminal records from holding particular positions or occupations or which mandate a screening process.

Comments will be accepted on the proposal until April 7.

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