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. 

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.

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 Mandates Employers Display Transgender Rights Poster in Workplace

On October 15, 2017, Governor Brown approved SB 396, a law that requires California employers with 5 employees or more to display a poster about transgender employment rights in a prominent and accessible location in the workplace with other mandatory workplace notices.

California's Department of Fair Employment and Housing recently issued the new mandatory poster, which addresses key topics such as the right of employees to use restrooms, locker rooms, and other similar facilities corresponding to their gender identity and to dress in accord with their gender identity and expression.

California's Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against any employee on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

The poster follows regulations developed by the Fair Employment and Housing Council that went into effect in July 2017. SB 396 also requires mandatory sexual harassment prevention to include a component regarding gender identity, gender expression, and sexual orientation for California employers with at least 50 employees.

If you feel you have been subjected to unlawful discrimination or sexual harassment in the workplace, please contact Bryan Schwartz Law today.

California Lawmakers introduce new proposals to address Sexual Harassment in the workplace

Today in California, employees who are subjected to unwanted sexual advances at work have just one year to file a claim under the state's Fair Employment and Housing Act (FEHA). Assemblywoman Eloise Gomez Reyes and her colleagues believe that window of time is far too short. That's why today, Assemblywoman Reyes introduced Assembly Bill 1870, one of many pending proposals inspired by the "Me Too" movement. 

Reyes has proposed tripling the length of time that public and private-sector employees have to file sexual harassment claims under California's Fair Employment and Housing Act, extending the statute of limitations for sexual harassment claims to three years. Assemblywoman Reyes says that it has become clear that California's current rules for sexual harassment are inadequate as a result of the powerful movement of women courageously standing up to end sexual harassment in the workplace all across the country.

Reyes stated that many victims of sexual harassment in the workplace fear retaliation and feel too ashamed to come forward and report it as reasons for why California should extend the time that employees have to file sexual harassment claims. Reyes is confident that her bill to extend the statute of limitations for sexual harassment claims will become law. 

Reyes is also sponsoring Assembly Bill 1867, which would require all employers with 50 or more employees to keep records of sexual harassment complaints for 10 years. Senate Bill 820 by Sen. Connie Leyva would prohibit settlements from including non-disclosure agreements related to sexual assault, harassment and discrimination, and would apply to public and private employers. 

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

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.

California's Public Civil Rights Agency Reaches Agreement with Airbnb to Combat Discrimination

California's Department of Fair Employment and Housing (DFEH) has reached an agreement with Airbnb, the online "sharing economy" platform that allows individuals to rent their homes to guests, that will support ongoing efforts to reduce bias and combat discrimination on Airbnb's platform.

Criticism of Airbnb began with a 2015 Harvard School of Business study that found guests with African-American sounding names had a tougher time renting rooms on Airbnb's platform than guests with white sounding names. In early 2016, DFEH began investigating taking action against Airbnb after reports of discrimination on Airbnb's platform became widespread on social media. 

At the time, Bryan Schwartz Law Associate Logan Talbot was working at the DFEH as a Civil Rights Fellow. Talbot was asked by the agency to research the issue and explore the agency's options for action. Talbot drafted a memorandum for DFEH Director Kevin Kish that recommended pursuing a Director's Complaint against Airbnb, alleging that Airbnb may have engaged in acts of discrimination and failed to prevent discrimination in violation of California's Fair Employment and Housing Act and Unruh Civil Rights Act.

DFEH thereafter filed the Director's Complaint. On April 27, 2017, the DFEH issued a press release stating that the agency had reached a voluntary agreement with Airbnb to combat housing discrimination on Airbnb's platform. Under the Agreement, Airbnb will advise all renters in California who complain of discrimination of their right to file a complaint with DFEH. Additionally, Airbnb will regularly provide reports to DFEH on complaints of discrimination by Airbnb users in California and guest acceptance rates by race and national origin in California. The Agreement also provides that Airbnb employees who review Airbnb Host and Guest complaints will receive training on how to recognize complaints of discrimination and the proper methods for referring discrimination complaints to Airbnb's anti-discrimination team. As part of the agreement with DFEH, Airbnb will also post on its website and email to all California Hosts a notice of the opportunity to obtain free online unconscious bias training. 

The agreement also allows for DFEH to conduct fair housing testing on California hosts who have been the subject or one or more discrimination complaints and have three or more listings on Airbnb's platform. Airbnb has agreed to not interfere with DFEH's fair housing testing and will allow them to create accounts and profiles for such testing.

“We will continue to work collaboratively with Airbnb to prevent racial discrimination by its hosts,” said DFEH Director Kevin Kish. “California is committed to removing all discriminatory barriers in housing, including in new platforms and marketplaces. Fair housing testing is an important and powerful tool in enforcing fair housing laws.” 

Seventh Circuit Holds Federal Law Prohibits Employers From Firing People Because they are Gay

Before the full panel, the U.S. Court of Appeals for the Seventh Circuit issued a groundbreaking decision, holding 8-3 that workplace discrimination based on sexual orientation violates federal civil rights law.

The case involved a lesbian, Kimberley Hively, who sued Ivy Tech Community College when it denied her full-time employment and promotions because she was a lesbian and married to a woman. Hively began teaching at Ivy Tech in 2000 as a part-time adjunct professor. Between 2009 and 2014, Hively applied for at least six full-time positions, but each of these efforts were unsuccessful; even worse, in July 2014 her part-time contract with Ivy Tech was not renewed, resulting in her termination.

After she was terminated, Hively filed an administrative complaint with the Equal Employment Opportunity Commission, alleging that Ivy Tech discriminated against her because of her sexual orientation and violated her rights under Title VII of the Civil Rights Act of 1964. After the trial court dismissed the case, the Seventh Circuit initially affirmed the the trial court's decision based on decades of case law that held sexual orientation was not a protected category under Title VII. Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016). 

Before the Seventh Circuit's full panel, Chief Judge Diane Wood, writing for the majority, brought new life into analyzing claims of sexual orientation discrimination under Title VII. The court framed the main question of the case as a question of statutory interpretation: what does it mean to discriminate on the basis of sex, and in particular, are actions taken on the basis of sexual orientation  a subset of actions taken on the basis of sex?

Guided by the U.S. Supreme Court's approach in a related case addressing whether Title VII covered sexual harassment inflicted by a man on a male victim (Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)), the Seventh Circuit acknowledged that discrimination on the basis of sexual orientation may not have been the principal evil Congress was concerned with when it passed Title VII. The Seventh Circuit nonetheless found that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which [courts] are governed." Id. at 79-80. The court also acknowledged that Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman simply because of her gender.

Hively framed her argument for why she should be covered by Title VII under two approaches: (1) a simple comparison isolating Hively's sex and the significance it played in her employer's decision; and (2) relying on Loving v. Virginia, 388 U.S. 1 (1967), which found that the Fourteenth Amendment of the constitution protects interracial marriages, holding that Title VII protects Hively's right to associate intimately with a person of the same sex. 

Under the first approach, the court found that if Hively had been a man married to a woman, and everything else would have stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. The court stated that "any discomfort, disapproval, or job decision based on the fact that the complainant - man or woman - dresses differently, speaks differently, or dates and marries a same-sex partner, is a reaction purely and simply based on sex," falling within Title VII's prohibition against sex discrimination. 

Addressing the second theory of discrimination presented by Hively, the court, relying on decades of cases holding that Title VII prohibits discrimination based on the race with whom a person associates, found that Ivy Tech's discrimination against Hively based on the sex of the person she associated with is also prohibited under the act. 

The court concluded with a clear holding: a person alleging that he or she experienced employment discrimination on the basis of his or her sexual orientation has put forth a case of sex discrimination for Title VII purposes. 

This is a landmark decision for the LGBTQ community, extending federal employment protections in Wisconsin, Illinois, and Indiana, which previously had state laws that only prohibited employment discrimination on the basis of sexual orientation with regards to state employment. This decision will now cover all private and public employers subject to Title VII. And, this will hopefully lead to other U.S. Circuit Courts revisiting this issue and expanding employment protections across the country for the LGBTQ community.

In California, the state's Fair Employment and Housing Act and Unruh Civil Rights Act have explicitly protected sexual orientation and gender identity from discrimination in employment, housing, and public accommodations for many years. Last year, California's Department of Fair Employment and Housing became the first state civil rights agency to issue guidance to employers regarding transgender employees.

If you have experienced discrimination based upon your sexual orientation, and need help, contact Bryan Schwartz Law.

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.