California Appellate Court Rules that Victims of Outrageous Workplace Discrimination May Sue Supervisors for Intentional Infliction of Emotional Distress

Earlier this month, a the Fourth District Court of Appeals in San Diego ruled that an employee’s claim against a former supervisor for intentional infliction of emotional distress (“IIED”) in connection with discriminatory conduct could proceed and was not barred by the workers’ compensation exclusivity rule. [Link to opinion in Light v. California Department of Parks &Recreation.] The employee Melony Light, a park aide and office assistant for the California Department of Parks and Recreation, alleges that she was subjected to discriminatory treatment by her supervisor Leda Seals, after Light refused to participate in and defend Seals’ ongoing harassment of a co-worker, Delane Hurley, whom Seals believed to be a lesbian. Among other acts (as alleged by Light), Seals subjected Light to ongoing verbal abuse, demanded that Light lie to Human Rights Office investigators about Seals’ treatment of Hurley, and physically intimidated Light. Eventually, the Department eliminated Light’s working hours, in keeping with one of Seals’ threats to Light.

Light sought and received a worker’s compensation award worth nearly $13,000 for anxiety, nausea, loss of appetite, migraines, asthma attacks, body aches and pains, digestive problems, vomiting, severe abdominal cramps, and tightness in the chest. Under the worker’s compensation exclusivity rule, the worker’s compensation system is generally the exclusive remedy for workers injured on the job, whether the injury is physical or psychological. The policy behind the rule is the  “compensation bargain,” under which the employer assumes no-fault liability for workplace injuries, granting the employee relatively swift and certain compensation, but limiting the range of tort remedies available.

But the exclusivity rule is not absolute and, relevant here, a line of cases developed which established that employees may sue employers for IIED where the actionable conduct also violates the California Fair Employment and Housing Act (“FEHA”). These cases established that discriminatory acts fall outside the normal risks inherent to the employment relationship, and thus do not fall within the worker’s compensation bargain. See, e.g., Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288 (“A claim for distress arising out of employment is not barred where the distress is engendered by an employer’s illegal discrimination practices.”). This FEHA exception recognizes that discrimination in the workplace is an exceptional injury, for which the worker’s compensation system alone cannot make an employee whole.

However, the viability of the FEHA exception to the exclusivity rule was placed in doubt by another recent ruling of the Fourth District in Yau v. Santa Margarita Ford., Inc. (2014) 229 Cal.App.4th 144, which concluded – without mention of FEHA – that the only viable exception to the exclusivity rule is for workplace injuries incident to a claim for wrongful termination in violation of public policy (also known as Tameny claims). The Yau court took the position that the California Supreme Court had severely limited the ability of employees to bring intentional infliction of emotional distress claims in Miklosy v. Regents (2008) 44 Cal.4th 876 , but the Court in Light concluded that its sister appellate panel had misread Miklosy, which involved an intentional infliction of emotional distress claim in the context of whistleblower retaliation and did not discuss FEHA.

 The opinion, authored by Justice Judith McConnell, also rejected the notion that an employee cannot bring an IIED claim against a supervisor, because FEHA does not permit claims against supervisors, finding that an IIED claim is not merely a different rubric to recover for a FEHA (or other workplace violation), but “is a substantively different claim, aimed at a different wrong, and protects a different interest.” In that regard, an IIED claim entails: (1) extreme and outrageous conduct by the defendant, with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation. IIED claims thus impose a high bar – and although not all FEHA cases will involve extreme and outrageous conduct by an individual supervisor or manager, many cases will.

The opinion further took aim at the trial court’s conclusion that Light had failed to raise triable issues of material fact as to any adverse employment action sufficient to support a claim for retaliation under FEHA at the summary judgment stage. Justice McConnell noted that Seals had explicitly threatened Light, telling her that she would be moved to a different workplace or terminated if she did not lie to the Human Rights Office. Then, when Light failed to follow orders, her scheduled hours were eliminated. Moreover, Light had been denied training and passed over for promotions. The Fourth District thus concluded that the trial court had erred and that Light’s FEHA retaliation claim could proceed.

In sum, while Light did not introduce the FEHA exception to the worker’s compensation exclusivity rule, the holding establishes its continued viability after Miklosy and Yau. Moreover, because Miklosy and Yau did not involve FEHA claims, Light does not create a direct conflict with those prior cases, making it unnecessary for the Supreme Court to resolve the tension between these lines of cases. Light provides clear encouragement to employees and their advocates to pursue IIED claims against individual managers and supervisors for discriminatory and outrageous conduct, in addition to FEHA claims against the employer. It also sends a clear message to employers that discrimination is not a “normal” part of the employment relationship, even if it is all too common, and that the risk to employers, managers, and supervisors of failing to prevent or take action against discriminatory conduct are substantial.

Governor Brown Signs Wave of Sexual Harassment Legislation

Yesterday, Governor Jerry Brown signed into law numerous amendments to the sexual harassment provisions of the California Fair Employment and Housing Act (“FEHA”). The bills were part of a wave of sexual-harassment-related legislation resulting from the groundswell of public support for the #Metoo movement. While the Governor vetoed many of the sexual-harassment-related bills that made it to his desk, the signed bills provide important new protections for employees in California. This blog post discusses some of these bills.

I.                   SB 1300 clarifies and expands employee rights under FEHA.

Governor Brown signed SB 1300, a bill which clarifies and strengthens the rights of employees who seek to shed light on workplace harassment and other discrimination.  

A.   A single instance of sexually harassing conduct may trigger a triable sexual harassment claim.

Perhaps most importantly, SB 1300 clarifies the “severe or pervasive” legal standard for proving sexual harassment claims (sexual, or otherwise, under the FEHA). Under the FEHA (and the federal Civil Rights Act of 1964, Title VII), sexual harassment is actionable if the sexual conduct is so “severe or pervasive” as to create a hostile work environment. “Severe or pervasive” harassment alone triggers the action, unlike other discrimination and retaliation claims, which may become actionable only if the employee experiences a tangible loss or denial of job benefits. See 2 Cal. Code. Regs. § 11034, subd. (f); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67-68 (1986); Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264, 279, 284 (2006).

SB 1300 clarifies that under FEHA’s “severe or pervasive” standard, “a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” Id. The legislature rejected the “stray remarks doctrine,” affirming the decision in Reid v. Google, Inc., 50 Cal.4th 512 (2010) – in other words, a single harassing remark should not be dismissed as being merely a “stray remark,” for the purpose of assessing an employer’s liability. It is also no defense for an employer that a particular occupation may have had more frequent sexual commentary or conduct in the past (disapproving Kelley v. Conco Companies, 196 Cal.App.4th 191 (2011)). Indeed, the Legislature went so far as to declare expressly that: “Harassment cases are rarely appropriate for disposition on summary judgment.” Id., subd. (e) (citing and adopting Nazir v. United Airlines, Inc., 178 Cal.App.4th 243 (2009). 

SB 1300 makes it more likely that victims of sexual harassment will get their day in court. What action may constitute “severe” or “pervasive” harassment has often been highly contested in sexual harassment cases, and unfortunately, in the past, some courts have ruled that workplace behavior that most women would find abusive was neither “severe or pervasive.” For example, in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) the Ninth Circuit Court of Appeals held that a single incident in which a fellow employee touched a plaintiff's breast under her sweater, while very offensive, did not rise to the level of “severe or pervasive” harassment for which Title VII and FEHA offer a remedy. On this basis, the appellate court upheld the district court’s grant of summary judgment for the employer, which meant that the plaintiff’s claims could not proceed to trial. Notably, last year, Alex Kozinski, who penned Brooks, stepped down from his seat on the Ninth Circuit rather than face an investigation into complaints of harassment by numerous women, including his former employees. SB 1300 expressly overturns Brooks’s nauseating “single grope” rule for claims brought under FEHA. Gov’t Code § 12923, subd. (b).

B.     Employers have a duty to prevent third party harassment of all stripes.

SB 1300 creates liability for employers who fail to prevent unlawful harassment of employees by non-employees where the employer knew or should have known of the discrimination and failed to take appropriate remedial action. This provision now extends not only to sexual harassment, but all forms of harassment based on a protected status. Gov’t Code § 12940.

C.    Employers may not obtain costs for plaintiffs’ worthy FEHA claims.

FEHA authorizes a court in certain circumstances and in its discretion to award the prevailing party in a civil action reasonable attorney’s fees and costs, including expert witness fees. California Code of Civil Procedure section 998 permits defendants to recover defense costs if a jury awards a smaller award to the plaintiff than the defendant previously offered in settlement. A defendant’s section 998 offer in a FEHA case used to have the effect of exerting pressure on a plaintiff to accept a settlement rather than face the prospect of covering defendant’s costs, even if the plaintiff prevailed at trial.

SB 1300 provides that a defendant may only receive fees and costs, regardless of any settlement offer, if a case is “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” Gov’t Code § 12965, subd. (b). The new law allows plaintiffs with worthy claims to seek their day in court without worrying about being on the hook for defendants’ fees and costs.

D.    Release of claims agreements and non-disparagement agreements related sexual harassment claims are unlawful.

SB 1300 prohibits employers from requiring employees to sign non-disparagement agreements as well as release of claims agreements as a condition of employment, continued employment, a raise, or bonus. Gov’t Code § 12964.5. These provisions will prevent employers from coercing or tricking employees into signing agreements that effectively silence them discussing workplace harassment or that strip them of their right to bring a claim under FEHA.

II.                SB 820 prohibits confidentiality provisions in sexual harassment settlements.  

It has become a common practice for employers to condition settlement of sexual harassment disputes on a complaining employee’s silence. Going forward, such provisions are expressly void and unenforceable for claims that have been filed in an administrative action or in court. SB 820 prohibits employers from conditioning settlement of certain claims of sexual assault, sexual harassment, or harassment or discrimination on the employee’s silence. The bill does allow for a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including pleadings filed in court to be included within a settlement agreement upon the request of the claimant. However, this provision does not apply if a government agency or public official is a party to the settlement agreement. This bill extends to disputes beyond the employment context, and takes effect on January 1, 2019.

III.             AB 3109 voids contracts and settlement provisions that seek to waive a party’s right to testify in a government proceeding concerning alleged criminal conduct or sexual harassment.

AB 3109 makes void and unenforceable any contract or settlement provision that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment, when the party has been required or requested to attend the proceeding. Civil Code § 1670.11. Like SB 1300 and SB 820, AB 3109 frees employees who have experienced sexual harassment and others to share their experiences with the public. This law takes effect on January 1, 2019.

IV.             SB 1343 brings sexual harassment training to more workplaces.

Employers of five or more employees, including temporary or seasonal employees, are now required to provide at least two hours of sexual harassment training to supervisory employees and at least one hour of sexual harassment training to non-supervisory employees by January 1, 2020, and every two years thereafter. See SB 1343; Gov’t Code §§ 12950, 12950.1. This is a major expansion of FEHA’s sexual harassment training requirements, as the law previously extended training only to supervisory employees of employers with fifty or more employees. This expansion recognizes the value of educating all employees that they have a right to work in an environment free of sexual harassment and associated retaliation. 

V.                Conclusion

In the words of Martin Luther King, Jr. “Darkness cannot drive out darkness; only light can do that.” California’s new laws will ensure that more victims of workplace harassment and others have their day in court and can more freely shed light on problems that persist in California workplaces.

If you have been a victim of sexual harassment or unwanted sexual advances in the workplace, please contact Bryan Schwartz Law today. 

California Supreme Court in Salas v. Sierra Chemical Holds that Undocumented Workers Are Not Barred from Relief for Claims Brought Under California’s Employment and Labor Laws

Today, in Salas v. Sierra Chemical Co., the California Supreme Court addressed a longstanding question regarding undocumented workers’ rights. The opinion is available here. The ruling settles the question of whether or not the doctrines of unclean hands and after-acquired evidence, which focus on employee misconduct to limit relief, stand as a complete bar to relief for undocumented workers who bring claims under California’s employment and labor laws. 

The plaintiff, Vicente Salas, was a seasonal worker in defendant’s company. Slip Op. at 3. He was injured while stacking crates in defendant’s production line and had to be taken to the hospital on two separate occasions. Slip op. at 4. After filing a Worker’s Compensation claim, he was laid off and not re-hired because of his disability, in violation of the Fair Employment and Housing Act (FEHA). Slip Op. at 5. After Mr. Salas brought claims for failure to accommodate and retaliation, the defendant moved for summary judgment. Slip Op. at 6.  The trial court denied summary judgment, but it was later granted by the Court of Appeal, reasoning that plaintiff’s undocumented status barred him from relief under the doctrines of unclean hands and after-acquired evidence. Slip Op. at 6.

The history and applicability of the unclean hands and after-acquired evidence doctrines in California date back to a Supreme Court ruling in McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352 (the unclean hands doctrine does not apply where a private suit serves important private purposes, but after-acquired evidence doctrine provides a partial defense for backpay). A subsequent California Court of Appeal decision misapplied the McKcennon rule. See Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal. App. 4th 620 (unclean hands and after-acquired evidence doctrines are a complete defense). The California Legislature stepped in, in 2002, by enacting Senate Bill 1818, which extended employment and labor protections to all workers regardless of immigration status. For more on the history surrounding the unclean hands and after-acquired evidence doctrine, see the article co-authored by Bryan Schwartz Law’s principal, available here.

Today, the court held that Senate Bill 1818, which extends state law protections and remedies to all workers “regardless of immigration status,” is not preempted by the Federal Immigration Reform and Control Act of 1986 (8 U.S.C. §1101 et seq.) (IRCA), except to the extent it authorizes an award of lost pay damages for any period after the employer discovers the employee’s inability to work in the U.S. Slip Op. at 2. Further, the court held that the unclean hands and after-acquired evidence doctrines are not complete defenses to a worker’s claims under the FEHA, though they do affect the availability of remedies. Id.

I.             IRCA Does Not Completely Preempt the FEHA’s Back Pay Remedial Scheme or SB 1818

Justice Kennard, writing for a majority including Justices Cantil-Sakauye, Werdegar, Corrigan, and Liu, held that IRCA did not preempt state law, rejecting the contention that federal immigration regulation imposed by IRCA had become so pervasive so as to leave no room for state employment laws that extend antidiscrimination protections to undocumented workers. Slip Op. at 14. The court reasoned that a conclusion that congress had “occupied the field” of employment and labor laws would dramatically inhibit critical state laws regulating workers compensation, minimum wage, working hour limits, and worker safety. Id.

The court also held that o the extent FEHA allows recovery of back pay for the period after the employer discovers a former employees’ undocumented status, that portion of California’s law conflicts with the IRCA’s provision against continuing to employ workers whom the employer knows to be undocumented, and thus is preempted by federal law. Slip Op. at 15. However, IRCA does not prohibit an employer from paying, or an employee from receiving wages already earned, so allowing recovery of lost wages in the period before the employer discovers the worker’s undocumented status does not produce an “inevitable collision between the two schemes of regulation.” Id. Thus, undocumented workers are entitled to lost pay award under the FEHA in the period before the employer’s discovery of the worker’s immigration status (including the post-termination period before discovery of immigration status). Id. 

Significantly, the court’s preemption analysis is limited to employers who discover a plaintiff employee’s unauthorized status after the employee has been discharged or not re-hired. Slip Op. at 15, n.3. In situations where an employer knowingly hires or continues to employ an unauthorized worker, federal law does not preempt lost wages remedies for violations of state laws like the FEHA. Id. Presumably then, in these situations, the plaintiff employee is entitled to the same wage remedies as any other documented worker. This was the situation in Mr. Salas’ case. His employer received notice of Mr. Salas’ undocumented status far before taking adverse employment action, and yet continued to employ Mr. Salas. Slip Op. at 3-4.

Finally, California’s Senate Bill 1818 does not frustrate the purpose of the IRCA, and is thus not preempted. Slip Op. at 19. Employers would be immunized from liability for violations of important worker protections if undocumented workers were denied state remedies for unlawful discharge, including pre-discovery period lost wages. Slip Op. at 18. The resulting lower employment costs would encourage employers to hire undocumented workers, contrary to IRCA's purpose of eliminating employers’ economic incentive to hire undocumented workers. Slip Op. at 19. Thus, to the extent that the SB 1818 grants undocumented workers employment and labor law protections in the period before the employer discovers a worker’s undocumented status, the law is not preempted by federal law. Id.  

II.            After-Acquired Evidence and Unclean Hands  Doctrines Are Not A Complete Bar To Relief

The after-acquired evidence doctrine cannot be a complete defense to claims brought under the FEHA because if it were, it would impair the act’s antidiscrimination goal. Slip Op. at 24. In reaching this conclusion, the court adopted the Supreme Court's reasoning in McKennon 513 U.S. at 358-59 (held the after-acquired evidence doctrine does to bar all relief under the federal ADEA because  allowing it to do so would be inconsistent with the federal statutory scheme and would impair the efficiency of the ADEA, although some bars to relief apply ). Slip Op. at 25.  However, in an attempt to fashion equitable relief for both parties, remedial relief should compensate an employee from the dates of wrongful discharge or refusal to hire to the date the employer acquired information about the employee’s wrongdoing or ineligibility for work. Id.  This bars the employer from violating the FEHA with impunity and the employee from obtaining lost wages compensation for a period which he or she may not have been employed. Slip Op. at 26.

With respect to the unclean hands doctrine, while the doctrine stands as a complete defense to legal as well as equitable causes of action, it may not be used to wholly defeat a claim based on public policy expressed by the legislature in statue. Slip Op. at 27. However, the courts should use equitable considerations in fashioning relief in cases involving a legislatively expressed public policy. Id.

Today’s decision, while not affording complete relief to California’s undocumented workforce, is a step in the right direction. The decision will slow down employers fishing for employee misconduct after a wrongful termination, to get off the hook for an improper action, which can make discovery costly and ineffective. Further, and more importantly, it gives undocumented workers the courage to step forward and speak of workplace violations that are contrary to public policy.

Most Disabled California Workers Should File State, Rather than Federal, Employment Discrimination Claims, after Anthony v. TRAX

The Ninth Circuit Court of Appeals issued a disappointing ruling interpreting the Americans with Disabilities Act (“ADA”) earlier this month. The case is Anthony v. TRAX International Corp. According to that ruling, an employee cannot pursue remedies under the ADA if their employer discovers after its discrimination that the employee lacked the prerequisite qualifications to perform the job. Even though the employer lacks this “after-acquired evidence” at the time it discriminates against the employee—even though the employer actually discriminated against the employee—such evidence can preclude recovery under the ADA, under this precedent. As discussed below, in the wake of this decision, plaintiff-side attorneys should consider bringing disability discrimination actions under California law instead of the ADA, and must investigate the qualifications issue in any case with ADA claims.

The employee in the case, Sunny Anthony, suffered from PTSD and related anxiety and depression. When her condition worsened, she was forced to miss significant time at work. Afterwards, her employer, TRAX, a government contractor with the Department of the Army, warned her that she would be fired if she did not submit a doctor’s note saying that she could return to work without restrictions, even though policies requiring employees to be 100% healthy do not comply with the ADA. When she failed to provide such a note, TRAX fired her. Ms. Anthony would have been eligible for rehire at administrative positions that were open at the time of her termination, but TRAX did not consider transferring or reassigning her, or any other measure, as an accommodation.

Ms. Anthony sued TRAX for disability discrimination and failure to engage in the interactive process regarding disability accommodations under the ADA. During the lawsuit, TRAX learned that Ms. Anthony did not have a bachelor’s degree, a requirement for all workers at Ms. Anthony’s position under TRAX’s contract with the Department of the Army. On this basis, TRAX successfully moved to have the case dismissed.

The Ninth Circuit affirmed the ruling in TRAX’s favor, holding that Ms. Anthony was not “qualified” under the ADA. See 42 U.S.C. § 12112(a). The court relied on EEOC regulation 29 C.F.R. § 1630.2(m) interpreting the ADA to analyze Ms. Anthony’s qualifications. To determine whether an individual is qualified pursuant to this ADA regulation, a court examines whether the individual has the qualifications necessary to perform the position (such as educational or experiential background) and whether the individual could perform the essential duties of the job with or without accommodations.

TRAX did not know about Ms. Anthony’s lack of a bachelor’s degree when it discriminatorily fired her. But despite TRAX’s wrongdoing, the Ninth Circuit held that Ms. Anthony’s lack of a bachelor’s degree completely barred her ADA claim. Because of 29 C.F.R. § 1630.2(m), according to the court, the question of an ADA plaintiff’s qualification is always pertinent, even if it has nothing to do with the alleged wrongdoing. The court suggested that the EEOC could amend this regulation in order to achieve a different result, though amending regulations is no easy task under any administration, and amending regulations to favor employees is even less likely under the current administration.

Ms. Anthony invoked the U.S. Supreme Court decision in McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995), an age discrimination case, to support her argument that the evidence of her lack of a bachelor’s degree acquired after her termination did not disqualify her from bringing her ADA claim. Bryan Schwartz Law has written about this case and the after-acquired evidence doctrine here, here, and here. McKennon held that, at most, such after-acquired evidence cuts off liability after the employer learns of a legitimate reason for termination. Ms. Anthony argued the same logic was at play in her ADA case.

In disagreeing, the Ninth Circuit argued that the Age Discrimination in Employment Act lacked a “qualified individual” requirement, unlike the ADA. It held that after-acquired evidence can show that a plaintiff is not qualified in an ADA case, even though such evidence cannot be used to support an employer’s purportedly neutral non-discriminatory basis for terminating an employee. The court noted, “An employer’s ignorance cannot create a qualification when there is none.”

Although the Anthony decision represents a setback for disabled employees seeking to enforce their ADA rights, the decision specifically applies to cases brought under the federal ADA, where 29 C.F.R. § 1630.2(m) is in effect, and not California’s Fair Employment and Housing Act (“FEHA”). After-acquired evidence does not provide a complete defense to a FEHA claim, thanks to the California Supreme Court decision in Salas v. Sierra Chemical Co., which followed McKennon and held that due to FEHA’s strong antidiscrimination purpose, “the doctrine[] of after-acquired evidence… [is] not complete defense[] to a worker’s claims under California's FEHA….” Instead, wronged employees are entitled to compensation from the date of the adverse action to the date the employer acquired information about the employee’s ineligibility for work. See Horne v. Dist. Council 16 Int’l Union of Painters & Allied Trades, (2015) 234 Cal. App. 4th 524, 540 (“Salas makes clear that after-acquired evidence is only relevant in the damages phase of a FEHA proceeding.”) Bryan Schwartz Law has written about Salas here.

Because after-acquired evidence cannot disqualify a disabled employee from recovery under FEHA pursuant to current law, practitioners should consider filing under FEHA rather than the ADA if possible. If the ADA is the only option, practitioners considering new cases should investigate the job requirements and the employee’s actual qualifications, without assuming that the fact of employment, no matter how long or exemplary, indicates that the employee was qualified. It is also important to note that Anthony hinged on an interpretation of a regulation specific to the ADA and distinguished McKennon on that ground; other federal discrimination statutes without an analogous regulation are unaffected. Furthermore, Anthony does not allow employers to retroactively come up with job requirements that did not exist at the time the employee was terminated, because a plaintiff must demonstrate that they were “qualified at the time of the adverse employment action, rather than at some earlier or later time.” Anthony Slip Op. at 11.

In addition, the Anthony court did not bolster the “unclean hands” doctrine, another legal defense based on misconduct by the employee. This defense is based on the questionable theory that a defendant should not have to pay for its wrongdoing when the accuser is just as guilty of wrongdoing. “Unclean hands” can constitute a complete defense, but it is unavailable “where a private suit serves important public purposes,” such as to enforce anti-discrimination statutes like the ADA. McKennon, 513 U.S. at 360-361.

If you believe your employer has discriminated against you based on your disability, contact Bryan Schwartz Law. 

Accommodating the telework employee post-COVID: What was often thought to be an “unreasonable” accommodation request, turns out to be very reasonable after all

[This article by Bryan Schwartz and Cassidy Clark appeared first in the May 2021 edition of Plaintiff magazine.] 

Plaintiffs’ employment lawyers are wondering how our society’s response to COVID-19 will change our practice, permanently. We now know that we can take depositions, attend mediation, argue motions, and perform almost every other basic litigation activity remotely, without compromising the quality of our efforts.

These changes will also improve our clients’ footing when they seek work-from-home disability accommodations. Employers have long argued that physical attendance at work is an essential function of most jobs. Courts have frequently rejected workers’ requests for telework or work from home as reasonable accommodations for disabilities under the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA).

Courts and juries will never see telework the same again. Even as more Americans become vaccinated against COVID-19 and traditional offices resume in-person operations, plaintiffs’ attorneys will successfully argue that pre-COVID-19 precedents regarding telework are outdated, and that today, telework is a presumptively reasonable accommodation in most places of employment.

Reasonable accommodations and undue hardship 

Under the ADA and FEHA, employers must provide reasonable accommodations to qualified employees where such an accommodation does not cause the employer “undue hardship.” (42 U.S.C. § 12112(b)(5); Gov. Code § 12940, subd. (m).) The initial burden rests with the employee to show that she is a “qualified individual” under the statutes. A qualified individual is a person who has the requisite education and experience for a job, and can perform the essential functions of the job “with or without reasonable accommodation.” (42 U.S.C. § 12111(8); Gov. Code § 12940, subd. (a)(1).)

The statutes provide examples for reasonable accommodations such as “job restructuring, part-time or modified work schedules, reassignment to a vacant position, [and] acquisition or modification of equipment or devices.” (42 U.S.C. § 12111(9); Gov. Code, § 12926, subd. (p) (2).) California’s FEHA specifically lists, “Permitting an employee to work from home,” as an example of a reasonable accommodation. (Gov. Code, § 11065, subd. (p)(2)(L).) As for undue hardship, the statutes instruct courts and juries to consider the financial resources of the employer, the impact of the accommodation on the operations of the employer, and the type of work conducted by the employer. (42 U.S.C. § 12111(10)(B); Gov. Code, § 12926, subd. (u).) This minimal guidance has allowed courts to deny employees the opportunity for telework frequently.

Telework jurisprudence

In February 2019, Bloomberg Law conducted an analysis of ADA telework cases and found that employers won 70 percent of rulings over the prior two years regarding whether they could reject workers’ bids for telework as an accommodation for a disability. Many federal and California courts had adopted a “general rule – that regularly attending work on-site is essential to most jobs, especially the interactive ones.” (E.E.O.C. v. Ford Motor Co. (6th Cir. 2015) 782 F.3d 753, 761; see also EEOC v. Yellow Freight Sys., Inc. (7th Cir.2001) 253 F.3d 943, 948; Tyndall v. Nat’l Educ. Ctrs. (4th Cir. 1994) 31 F.3d 209, 213; Samper v. Providence St. Vincent Med. Ctr. (9th Cir. 2012) 675 F.3d 1233, 1237-38 (collecting cases); Mason v. Avaya Commc’ns, Inc. (10th Cir. 2004) 357 F.3d 1114, 1122-24 (same); McCormick v. Pub. Employees’ Ret. Sys. (2019) 41 Cal.App.5th 428, 441.) As a typical example, the Seventh Circuit opined that “most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.” (Rauen v. U.S. Tobacco Mfg. L.P. (7th Cir. 2003) 319 F.3d 891, 896.) One unpublished (thankfully) California Court of Appeal explained (citing federal authorities), “Except in the unusual case where an employee can perform all work-related duties at home, an employee who doesn’t come to work cannot perform any of his job functions, essential or otherwise.” (ital. in orig.) (Hernandez v. Pac. Bell Tel. Co. (Cal. Ct. App. Jan. 24, 2017) No. B260109, 2017 WL 345057, at *7 (quoting Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1239 (9th Cir. 2012).) 

On the other hand, even before COVID-19, some courts recognized remote work as a possible reasonable accommodation. (See Samper, Id. [“regular attendance is not necessary for all jobs”]; Waggoner v. Olin Corp. (7th Cir. 1999) 169 F.3d 481, 485 [“In some jobs . . . working at home for a time might be an option”]; Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994) [“in appropriate cases, that section requires an agency to consider work at home, as well as reassignment in another position, as potential forms of accommodation”]; Ravel v. Hewlett-Packard Enter., Inc. (E.D. Cal. 2017) 228 F.Supp. 3d 1086, 1096 [holding “work from home” may be a reasonable accommodation under FEHA].)

An especially promising 2001 Ninth Circuit decision, Humphrey v. Memorial Hospitals Association, should guide plaintiffs’ attorneys in a post-COVID-19 landscape. (239 F.3d 1128, 1138 (9th Cir. 2001).) “Working at home is a reasonable accommodation when the essential functions of the position can be performed at home and a work-at-home arrangement would not cause undue hardship for the employer.” (Id. at 1136.) In Humphrey, the court reasoned that because other employees were allowed to work remotely for reasons other than disability, working in person may not have been an essential function of the job, and therefore, remote work should have been considered as an accommodation for the plaintiff-employee with a disability. (Id. at 1137; see also Hughes v. U.S. Foodservice, Inc. (9th Cir. 2006) 168 F. App’x 807, 808 [applying Humphrey to FEHA, finding the plaintiff “able to perform the essential functions of the new customer service position from home and that a work-at-home arrangement would not cause [defendant] undue hardship” under FEHA].)

Humphrey teaches us that in analysis of undue hardship and essential functions, courts consider whether the work has been successfully performed by other employees outside of the physical office. Now, following a year of widespread telework wherein most traditional office employers have successfully instituted some form of telework without sacrificing productivity, plaintiffs will be armed with abundant examples of successful telework arrangements. Many plaintiffs will be able to show that they themselves have successfully completed their jobs remotely.

Telework in a post-COVID-19 landscape

Workers’ advocates should start by reminding employers – and courts – that employers have the burden of establishing that the stated essential functions are, in fact, essential functions of the job. (See Bates v. United Parcel Serv., Inc. (9th Cir. 2007) 511 F.3d 974, 991 [“Although the plaintiff bears the ultimate burden of persuading the fact finder that he can perform the job’s essential functions ... an employer who disputes the plaintiff ’s claim that he can perform the essential functions must put forth evidence establishing those functions.”].) In other words, employers cannot simply state that physical attendance is an essential function of the job. Employers must offer evidence supporting their contention that physical attendance is essential. This will likely become more difficult as many employers have already instituted widespread telework accommodations for their entire workforces. 

We can already see a shift occurring. On September 16, 2020, a Massachusetts District Court accepted evidence of an organization’s COVID-19 work-from-home arrangement to support a plaintiff-employee’s argument that they should be allowed to telework as a reasonable accommodation for their disability going forward. (See Peeples v. Clinical Support Options, Inc. (D. Mass. 2020) 487 F.Supp.3d 56, 65.) In Peeples, the employer made the same argument made successfully by so many employers before, that it needed its employees physically in the office to ensure adequate supervision and client interaction. (Ibid.) However, here, the plaintiff presented evidence that they performed the same duties on-site that they had provided remotely during the organization’s initial COVID-19 response. (Ibid.) Thus, because the plaintiff had already demonstrated that they could perform the essential functions of the job remotely, the court held that the balance of hardship weighed in the plaintiff ’s favor. (Ibid.)

Whereas prior to COVID-19, courts were not persuaded that intangibles such as “teamwork, personal interaction, and supervision” could be accomplished through telework, the past year’s experience may persuade them otherwise. Before 2020, courts frequently repeated the Samper quote, that only in the “unusual case” could an employee effectively perform work-related duties at home. Now, it is much less “unusual” for people to work entirely from home. Additionally, prior to the pandemic, much of the legal profession, including the courts, had never experienced telework. Now, attorneys and courts know that remote work arrangements can be successful. 

Further, the widespread nature of telework during COVID-19 accelerated the technology available to employers to facilitate remote work. Prior to March 2020, most of the world had never heard of Zoom and many workplaces had never had video meetings. Now, these technologies are integral aspects of office jobs that courts and juries will take into account. 

EEOC guidance

In December, the EEOC, under the prior administration, issued guidance regarding telework in a post-COVID-19 America. (What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. EEOC (last accessed April 26, 2021).) The Guidance emphasized that even if a workplace participated in telework during the COVID-19 pandemic, the employer will not be required to approve telework as a reasonable accommodation after the pandemic concludes. (Ibid.) However, the agency noted, “the period of providing telework because of the COVID-19 pandemic could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely.” (Ibid.)

Although this guidance is outdated because of the new administration, the suggested framework of viewing an employee’s telework during COVID-19 as a sort of “trial period,” may inform plaintiffs’ strategy going forward. As in Peeples, plaintiffs should consider using their own successful experience working remotely as evidence that they can perform the essential functions of their jobs while working from home.

Conclusion

For far too long, courts disfavored the prospect of telework because of traditional notions of productivity and workplace comradery, even though telework provides an avenue for people with disabilities to have successful careers that otherwise may not be available to them.

One silver lining of having experienced the COVID era may be that plaintiffs’ attorneys can move courts and juries toward presumed acceptance of work-from-home disability accommodations. We now know that employers have the capacity to make big changes to keep their workforce employed,  including shifting to telework, without losing productivity. What was previously thought of often as an “unreasonable” accommodation request, turns out to be very reasonable after all.

Bryan Schwartz is an Oakland-based practitioner representing workers in class, collective, and individual actions, including discrimination, wage/hour, whistleblower, and unique federal and public employee claims. He practices in state and federal trial and appeals courts, in arbitration, and before a variety of administrative agencies. Since 2010, he has represented a certified class of Foreign Service Officer candidates denied reasonable accommodations against the U.S. Department of State. He is past Chair of the 8,000+-member State Bar Labor and Employment Law Section (now called California Lawyers Association), and on the Board of Directors of Legal Aid at Work, the Foundation for Advocacy, Inclusion and Resources (FAIR), and is a former Board member of the California Employment Lawyers Association. He is a regular speaker, moderator, and conference co-chair on employment law issues, and a frequent contributor to Plaintiff magazine and other publications. www.BryanSchwartzLaw.com.

Cassidy Clark is the Joseph V. Kaplan Workers’ Rights Fellow at Bryan Schwartz Law. She represents workers in discrimination, retaliation, whistleblower, and wage/hour claims. Ms. Clark earned her undergraduate degree at Cornell University and her Juris Doctor from UC Berkeley School of Law.

Discriminated Against? Both the Staffing Agency and Your Assigned Workplace Are Likely on the Hook

Are you employed through a staffing agency? Do you have an employment discrimination case against the company where the staffing agency placed you? Companies love to dodge responsibility by saying that workers hired through staffing agencies aren’t employees. But they’re likely wrong.

In the recently issued case of Jimenez v. U.S. Cont'l Mktg., Inc. (2019) 41 Cal.App.5th 189, 197-98, the California Court of Appeals reminded companies that the “general principle—that an individual may be held to have more than one employer in the temporary-staffing context—has ‘long been recognized for the purposes of applying state and federal antidiscrimination laws.’” (quoting Bradley v. Dep’t of Corr. & Rehab. (2008) 158 Cal. App. 4th 1612, 1626).

Jimenez brought several claims under California’s Fair Employment and Housing Act (FEHA, which prohibits discrimination, harassment, and retaliation in the workplace) against both a staffing agency (Ameritemps) and her contracting employer (USCM). To determine whether the contracting employer was indeed Jimenez’s employer, the court held that “factors under the contractual control of the temporary-staffing agency (such as hiring, payment, benefits, and timesheets being handled by a temporary-staffing agency) are not given any weight in determining the employment relationship with respect to the contracting employer.” Jimenez, 41 Cal.App. at 193. In other words, the factors used to determine whether a staffing agency is someone’s employer are different from the factors used to determine whether a contracting employer is someone’s employer. Just because a staffing company oversees hiring, payment, benefits, and time-tracking does not mean the contracting employer is off the hook.

Why are the factors different? The factors that make a staffing agency someone’s employer are “outside the scope of the terms and conditions of the temporary employee’s employment with the contracting employer.” Jimenez, 41 Cal.App. at 193. Liability for harassment or discrimination under FEHA is “‘predicated” on allegations “‘involving the terms, conditions, or privileges of employment under the control of the employer[.]’” Id. (quoting Bradley v. Department of Corrections & Rehab. (2008) 158 Cal.App.4th 1612, 1629).

What matters when determining whether a contracting employer is responsible for alleged violations of FEHA is whether the employer exercised “direction and control” over the employee. Jimenez, 41 Cal.App. at 197. Examples of direction and control are whether the employee must obey instructions from the employer and whether the employer can fire the employee at any time. Id. Other examples the court cited were the fact that (1) Jimenez reported to an USCM employee; (2) she supervised both employees hired by USCM and employees hired through staffing agencies; (3) she was subject to USCM’s employee handbook; (4) she participated in company trainings and was able to use USCM’s clinic for on-the-job injuries; (5) she was subject to USCM’s disciplinary policies; and (6) USCM employees supervised and train (and are supervised and trained by) employees hired through staffing agencies. Id. at 199-200.

While the court declined to adopt a bright-line rule that every worker placed through a staffing agency is an employee of the contracting company, it did make clear that companies can’t dodge responsibility for discrimination and harassment that happens under their watch simply by pointing out that staffing agencies are responsible for the things staffing agencies are normally responsible for, namely hiring, payment, benefits, and time-tracking. A company will need to show that it did not exercise direction and control over the employee. This is a win for employees and a win for FEHA, whose purpose is “to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination.” Id. at 71-72.

Bryan Schwartz Law has written about FEHA before. If you believe you are being discriminated against in the workplace and were hired through a staffing agency, contact Bryan Schwartz Law today.

California Supreme Court Decides in Harris v. City of Santa Monica: Employer Does Not Escape Liability in Mixed Motive Cases

Yesterday, Justice Goodwin Liu, writing for a unanimous California Supreme Court, held that where unlawful discrimination is a substantial motivating factor in an adverse employment action, even if the employer also has a non-discriminatory reason for the employment action, the “employer does not escape liability.” Harris v. City of Santa Monica, S181004.

Within eight days of notifying her employer that she was pregnant, Ms. Harris was terminated from her position as a bus driver. Thereafter, she sued the City of Santa Monica for pregnancy discrimination under the Fair Employment and Housing Act (“FEHA”). The City of Santa Monica claimed that it had a legitimate non-discriminatory reason for terminating Ms. Harris also – namely, performance and attendance issues.

The jury was instructed to find for Ms. Harris if they determined that her pregnancy was a “motivating factor” in the City’s decision to terminate her. The jury found in favor of Ms. Harris and awarded her $177,905. The City of Santa Monica appealed the decision, based on, among other things, the trial court’s refusal to give the jury a mixed-motive instruction (BAJI No. 12.26).

The Court of Appeal agreed with the City of Santa Monica and determined that the refusal to give the “same-decision” instruction was prejudicial error. However, the Court of Appeal also recognized that there was substantial evidence to support the jury’s finding that Ms. Harris’ pregnancy was a motivating factor in the City’s decision to fire Ms. Harris. The Court of Appeal ordered a new trial and Ms. Harris petitioned the Supreme Court for review. The City asked the Supreme Court to adopt a standard of complete immunity for an employer that can show it would have made the same employment decision absent discrimination, relying upon the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins (1989) 490 U.S. 288.

In Price Waterhouse, the United States Supreme Court held that once a plaintiff shows that discrimination is a motivating factor in the employment decision, the burden shifts to the defendant to prove that it would have made the same decision in the absence of discrimination. Price Waterhouse created  a “same-decision” defense, providing a defendant complete immunity to liability if the employer were to prove that it would have made the same employment decision, even in the absence of, in Ms. Harris’ case, her pregnancy. However, as the Harris court noted, the Civil Rights Restoration Act of 1991 negated the complete defense established in Price Waterhouse, codifying instead the rule that an employer’s showing it would have made the same decision absent discrimination limits the remedies available to a Title VII plaintiff, but does not provide a complete defense to liability.

Ultimately, the California Supreme Court returned for its answer to the language and purpose of FEHA, prohibiting discrimination “because of” pregnancy or other protected bases (Gov. Code §12940), and hoping to effect “what the Legislature said it sought to accomplish in enacting the FEHA.” In so doing, the Supreme Court stressed FEHA’s “goal of preventing and deterring unlawful discrimination” in rejecting the employer’s notion of a complete defense to a FEHA action where they prove a “same-decision” defense. Yet, the Supreme Court declined the employee’s request to impose a “clear and convincing” standard for proof of the “same-decision” defense – allowing employers to escape liability for backpay and other relief based upon a simple preponderance of the evidence that they would have acted the same without discrimination.

Summarizing, the Supreme Court concluded that “when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement.” Yet, the Court held that a prevailing plaintiff may still be entitled to declaratory or injunctive relief as well as attorney’s fees and costs, preventing a discriminating employer from escaping liability all together.

If you believe you have been subject to discrimination in your employment, contact Bryan Schwartz Law.

Disclaimer: Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement signed with Bryan Schwartz Law to be a client of this firm or this author.

It Doesn’t Hurt to Ask: New CA Law Protects Right to Ask for Reasonable Accommodation Under California’s Anti-Discrimination Law

Governor Brow­­­­n recently signed into law Assembly Bill 987, overturning the wrong result in Rope v. Auto-Chlor System of Washington, Inc., 220 Cal. App. 4th 635 (2013), review denied (Jan. 29, 2014), and thereby ensuring that all Californians need not fear retaliation should they request a reasonable accommodation from their employer.

In Rope, the plaintiff sought to donate his kidney to his sister. Accordingly, he requested leave from his employer to undergo the transplant surgery and recover from the operation. After repeatedly ignoring Mr. Rope’s requests for leave, the employer eventually approved an unspecified amount of leave. However, only two months before the operation date, Mr. Rope’s employer fired him for allegedly poor performance. Importantly, Mr. Rope had received only positive performance reviews during his employment and had no disciplinary problems prior to his termination.

Mr. Rope filed suit asserting multiple claims including retaliation for requesting a reasonable accommodation under the Fair Employment and Housing Act (FEHA). The trial court dismissed his lawsuit on demurrer, including the retaliation claim. Mr. Rope appealed.

To the dismay of worker advocates statewide, the Court of Appeal affirmed the trial court’s dismissal of Mr. Rope’s retaliation claim. The appellate court interpreted the retaliation provision under the FEHA to require that 1) an employee “engaged in activities in opposition to the employer at the time of the alleged retaliation,” and 2) the employer knew about it. Id. at 653. While the Court of Appeal acknowledged that the FEHA “encompasses a broad range of protected activity,” does not require that an employee “file a formal charge,” and that “[t]he determination as to what constitutes a protected activity is inherently fact driven,” the court nevertheless held that requesting a reasonable accommodation categorically is not “protected activity” under the FEHA. Id. at 652-653. The court did not interpret an employee’s request for reasonable accommodation as “opposition” to an employer. Id. at 652-53.

Other courts have reached different results in similar circumstances, noting that “[i]t would seem anomalous … to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003) (in the context of a lawsuit brought under the Americans with Disabilities Act). The Third Circuit’s concern was warranted, given the outcome in Rope.

Assembly Bill 987 corrects the anomalous result in Rope by ensuring that employees can request reasonable accommodations in the workplace without fear of retaliation. Employers should take notice that, separate from their duty to engage in the interactive process, they may not retaliate against an employee for requesting a reasonable accommodation.

If you believe your employer retaliated against you because you requested a reasonable accommodation, please contact Bryan Schwartz Law.

Fair is Hair: California Makes It Illegal to Discriminate on the Basis of Hair Styles

Last month, Governor Newsom signed a landmark anti-discrimination bill into law. This law takes aim at grooming policies that discriminate on the basis of race through restrictions against types of hairstyles.

Under the California Fair Employment and Housing Act (“FEHA”), employers cannot engage in certain employment actions, such as hiring, firing, promoting, or disciplining, on the basis of protected characteristics, including race. One might think that this prohibits discrimination based on hair styles that are historically associated with race. Not necessarily. FEHA does not say so explicitly, California courts have not considered the issue, and some federal courts have held the opposite. SB 188, which goes into effect at the start of 2020, seeks to clarify that race discrimination includes hair-based discrimination.

In enacting SB 188, the California Legislature was concerned by the story of New Jersey high school wrestler Andrew Johnson, who was forced to choose either to cut his dreadlocks or forfeit a match. The Legislature also took note of Rafael Scott and Sheldon Lyke, two African-American men who were turned away from a Chicago nightclub because of their braided hair styles. Even outside the employment context, the Legislature noted in the findings section of SB 188, “hair remains a rampant source of racial discrimination with serious economic and health consequences, especially for Black individuals.”

However, leading federal court decisions have held that hair-based discrimination does not implicate the federal Title VII to the Civil Rights Act of 1964. Federal courts have generally held that federal civil rights applies only to “immutable” characteristics—characteristics a person is born with and cannot control. A New York federal court relied on this notion to rule that an American Airlines grooming policy prohibiting braided hairstyles did not discriminate on the basis of race. Rogers v. Am. Airlines, Inc., 527 F. Supp. 229, 232 (S.D. N.Y. 1981). In the court’s view, the policy did not discriminate on the basis of race because American Airlines employees could choose whether or not to braid their hair.

The 11th Circuit Court of Appeals reached a similar conclusion in EEOC v. Catastrophe Management Solutions, 852 F.3d 1018 (11th Cir. 2011) (“Catastrophe”). In that case, an employer rescinded an employment offer when it learned the prospective employee styled her hair in dreadlocks. According to the employer, the dreadlocks violated the company’s grooming policy, which required employees “to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards.” Again relying on the idea that hair styles are not immutable traits, the 11th Circuit determined that the employer’s grooming policy was not discriminatory.

Some federal decisions have come out the other way. In Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164 (7th Cir. 1976) (“Jenkins”), an employee alleged that she was subject to racial discrimination because she wore an afro. The 7th Circuit Court of Appeals ruled that this allegation sufficiently expressed an actionable discrimination claim. But the Eleventh Circuit distinguished this case, reading it to hold that African-American hair texture is an immutable characteristic while African-American hair styles are not; the employee in Jenkins wore a “natural afro,” while the employee in Catastrophe chose to wear braids.  

The California Legislature passed SB 188 out of concern that state courts looking to the federal courts for guidance would agree with the Catastrophe court. To ensure there would be no confusion, the Legislature included in the section of findings and declarations, “The courts do not understand that afros are not the only natural presentation of Black hair. Black hair can also be naturally presented in braids, twists, and locks.”

In practical terms, SB 188 adds two subsections to FEHA clarifying that “Race” includes traits historically associated with race, including hair texture and protective hairstyles. The law also adds two new subjections to Section 212.1 of the Education Code to the same effect.

Two weeks after California passed SB 188, New York followed suit with a similar law. Perhaps other states will follow.

If you are facing racial discrimination in the workplace based on your hair style, contact Bryan Schwartz Law today.