Recent Decisions: Employment Law...
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Harassment: Evidence of Harassment of Other Employees
Pantoja v. Anton, 198 Cal. App. 4th 87 (Cal. App. 5th Dist., August 2011)
Evidence of harassment of others is not admissible to show that the alleged harasser had a propensity to harass; and can only be used to prove plaintiff’s case if the plaintiff witnessed the harassment or was otherwise aware of it, and it contributed to an abusive working environment for plaintiff. However, such evidence can be introduced for the purpose of showing intent; impeaching the alleged harasser’s credibility; or to rebut factual issues.
California Family Rights Act: Interference/Retaliation
Rogers v. County of Los Angeles, 198 Cal. App. 4th 480 (Cal. App. 2d Dist., August 2011)
The California Court of Appeal found that the employer had not “interfered” with Rogers’ rights under the California Family Rights Act (CFRA) when she was transferred to another position when she returned from leave because she was not entitled to reinstatement when she failed to return to work at the end of her 12-week protected CFRA leave. Additionally, the court held that the employer had not “retaliated” against Rogers for exercising her right to take CFRA leave because there was insufficient evidence to show that having taken the leave was the reason for an adverse employment action. The employer gave a legitimate, non-discriminatory reason for the decision to transfer her to another position and Rogers did not present any evidence to the contrary.
Independent Contractors: Liability for Injury of Employee of Independent Contractor
Seabright Insurance Company v. U.S. Airways, Inc. /Lujan, 2011 Cal. LEXIS 9351 (Cal., Aug. 22, 2011)
An employee of an independent contractor hired by U.S. Airways to maintain and repair a conveyor system was injured when his arm was caught in moving parts. The conveyor did not have safety guards required by Cal/OSHA regulations. The California Supreme Court determined that U.S. Airways had a tort law duty to ensure the safety of the contractor’s employees but had delegated that duty, including any duty to comply with Cal/OSHA safety requirements, to the contractor. Therefore, the airline was not liable for the injuries. The Court stated that it would be unfair to allow the employee of the contractor to obtain tort damages against the hirer of the contractor because he happened to have been working for a hired contractor since tort damages would not otherwise have been available to him for a workers’ compensation injury, particularly in this case where the contractor had sole control over the means of performing the work.
Discrimination: Inconsistent Actions Can Show Pretext
Earl v. Nielsen Media Research, Inc., 2011 U.S. App. LEXIS 19616 (9th Cir., September 26, 2011)
The Ninth Circuit reversed summary judgment where the plaintiff showed that other similarly situated employees who were younger were treated differently. This constituted specific evidence for a showing of pretext by the employer. The employer had not implemented its own internal policies on a consistent basis. [See November 22, 2011 GMK Alert.]
Scotch v. Art Institute of Cal-OC
First | Previous | Next | LastFEHA DISABILITY DISCRIMINATION STANDARD
The Fourth District Court of Appeals just issued an employer-favorable decision with regard to the burdens of evidence imposed on a plaintiff suing under the Fair Employment and Housing Act to avoid summary judgment. This decision gives guidance regarding a split of authority concerning an employer’s obligation to engage in the interactive, reasonable accommodation process.
Carmine Scotch worked as an instructor for the Art Institute of California Orange County, Inc. He claimed the Institute violated the FEHA’s prohibition on disability discrimination (he was HIV-positive) because, among other reasons, it reduced his working hours to part time, it failed to engage in the interactive process and failed to provide a reasonable accommodation.
The Institute presented evidence that it put Scotch on part-time status for legitimate business reasons (he had not obtained the necessary degrees required to work in a full-time position). Scotch failed, however, to show that the explanation offered by the Institute was, in fact, pretextual and therefore his discrimination claim failed. Scotch offered, as a form of reasonable accommodation, that he be given priority in class assignments and a greater number of classes. This “accommodation,” in fact, was designed to allow him to maintain full-time status, rather than actually accommodate a disability so he could perform the job’s essential functions. Finally, Scotch’s claim for failure to engage in the interactive process failed because he could not show that any reasonable accommodations existed. If no reasonable accommodations existed, then there was no employer duty to engage in the interactive process.
Notably, the court in coming to this conclusion chose the employer-friendly route, as opposed to the employee-friendly route. Earlier cases, decided after the passage of AB 2222 (Kuehl) which codified in the FEHA the obligation to undergo the interactive process, ruled that the failure to undergo the process itself, regardless of whether a reasonable accommodation actually existed, would create independent liability for a FEHA violation. Later cases, which the Scotch court found to be persuasive held that they duty to undergo the reasonable accommodation process existed only when there were recognized accommodations that could be considered during the process.
Scotch does not, however, resolve the conflict, and there is no cases currently pending review by the California Supreme Court where this question is an issue. However, more and more courts are adopting the employer-friendly approach, including one that recently granted a GMK client’s summary judgment motion based on this premise. In that case, a janitor for a convalescent center suffered a work related injury that prevented him from using the cleaning machinery necessary to perform his job. At his deposition, he admitted that he could not use the machinery, that the machinery was necessary to perform his job’s essential functions, and that there was nothing the employer could have done that would have allowed him to use the machinery. Accordingly, we argued on our client’s behalf that the employee was not a “qualified individual” entitled to FEHA protection because he could not perform his job’s essential functions, and there was no reasonable accommodation that would allow him to do those tasks.
The trial court tentative ruling, made prior to oral argument, was against the employer. After oral argument the court agreed to take the matter back under submission and later reversed itself, and granted our client’s motion.
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