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When Obesity Discrimination is Illegal Disability Discrimination

Employee Discrimination , , , , ,

In certain California cities, including San Francisco and Santa Cruz, city officials and government contractors cannot discriminate against employees and job applicants based on their weight. In some situations an individual struggling with obesity can file a lawsuit under federal law when an employer or potential employer makes a decision against them based on their weight. However, note that under California law, weight and obesity discrimination is generally not illegal without additional physiological complications.

Protection at the State and Federal Levels

Both federal and California law protects individuals with disabilities or perceived disabilities from discrimination. At the federal level, the Americans with Disabilities Act (ADA) is an anti-discrimination law that defines disability as a condition that substantially limits one or several major life activities. In some cases Obesity might be classifiable as a disability under ADA. The department responsible for implementing ADA, the Equal Employment Opportunities Commission (EEOC), won a settlement against an employer in 2012 after a federal court agreed that obesity impairs major life activities including walking, digesting, and bending. See EEOC v. Resources for Human Dev., Inc., 827 F. Supp. 2d 688, 694 (E.D. La. 2011).

By comparison, California law is generally stricter than federal law. Under California employment discrimination law an employee must also show that if a major life activity is impaired, that the impairment is due to a physiological condition. This means that obesity must result from a physiological disorder to be considered a disability under California law; it must not merely be a condition resulting from an individual’s voluntary action or inaction.

The Importance of Proving Your Physiological Condition

As a result, California courts have been much more reluctant to allow obesity to be claimed as a disability than Federal courts. For example, in the case of Cassista v. Community Foods, Inc, 5 Cal. 4th 1050 (1993) a woman struggling with obesity applied to work at a grocery store. The store rejected her application and told her that they were concerned she would not be able to perform the necessary functions of the job because she was obese. The woman sued the store under California disability law, but the Supreme Court of California held that the woman failed to show that she had an underlying physiological disorder that caused her obesity or that the store believed she had such an underlying disorder.

When employers discriminate against job applicants or employees due to a disability the employer may be subject to liability. If you think you have been discriminated against in any way, find out how to get the justice you deserve by contacting experienced employment lawyer Michelle Baker today. Call (858) 452-0093 now to begin your free case evaluation.

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The Interaction Between Disability Benefits and Disability Law

Employee Discrimination , , , ,

Disability DiscriminationSometimes when an employee becomes injured they qualify for protections under state or federal disability law. However, this can present complications when the employee also seeks disability related benefits through state or private insurance. In a recent case the 9th Circuit Court of Appeals reviewed whether an employee who claims total disability for the purpose of disability benefits can also be protected under the Americans with Disabilities Act (ADA).

Smith v. Clark

In Smith v. Clark County School District a school employee, Smith, suffered a back injury. She then applied for disability benefits under Nevada’s Public Employee’s Retirement System (PERS) as well as medical benefits from her insurance.

Smith also applied for Family and Medical Leave Act (FMLA) leave. On Smith’s FMLA application her doctor stated that Smith was presently incapacitated and was unable to work until she received further notice by a doctor. Smith stated on her application for disability benefits under PERS that she was completely unable to work due to her injury.

However, during this time Smith also negotiated with the school over when she could return to work. Smith claimed that she could work as a literary specialist but not as a teacher. The district offered Smith a position as a teacher with accommodations, but not a literary specialist position. Smith declined this offer.

Smith then sued the school in federal court alleging violations of ADA for failing to provide her with reasonable accommodations for the literary specialist position. The court dismissed the lawsuit because Smith stated that she was permanently disabled, meaning she could not do the work.

The Ninth Circuit’s Decision

When the case reached The Ninth Circuit, they reversed the decision. The mere fact that Smith had made inconsistent statements in the PERS application was not seen as conclusive that she was totally disabled and could not perform essential job functions. In other words, the fact that Smith was totally disabled for the purposes of PERS disability benefits, but at the same time told the district that she could perform the duties of a literary specialist could not be used against her. The reasoning was because the claim for disability benefits under PERS did not take into consideration whether reasonable accommodations could make employment a possibility for Smith.

If you have experienced disability discrimination, you may be entitled to compensation. To learn more contact Michelle Baker at Baker Law Group, LLP. Schedule your free consultation today by calling (858) 452-0093.

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Supreme Court Limits Employee Retaliation Cases

Employee Discrimination , , , ,

Natl Origin DiscriminationThe U.S. Supreme Court decided a case that will have a significant impact on retaliation cases under Title VII of the Civil Rights Act of 1964. Generally, an employee can sue an employer if the employer made a decision about the employee and the motivating factor was based on race, color, religion, sex, or national origin under federal anti-discrimination law, even if motivating factors were also present. However, the language of the statue does not specify that the same language regarding the decision being only a “motivating factor” applies to cases of retaliation. A charge of unlawful retaliation can be brought “because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].”

Up until now, courts have been split as to whether to interpret the cause of retaliation in the same way the cause of a direct discrimination act.

The Case: University of Texas Southwestern Medical Center v. Nassar

In the case of University of Texas Southwestern Medical Center v. Nassar, Nassar, a doctor of Middle Eastern heritage complained that he had experienced harassment due to his race. However, after he made the complaint he alleged that he suffered retaliation from his employer because of his complaints. He filed a retaliation lawsuit and won based on the jury instruction that the complaint he made only needed to be a motivating factor for suffering retaliation. The employer appealed the decision all the way to the Supreme Court.

The Supreme Court found that the law governing Title VII was originally based in the law of personal injury (Tort law). Tort law generally requires that a party prove that if it were not for the act of one party, the damage would not have resulted. As a result the court concluded that the lesser motivating factor requirement was incorrect. The court found that the correct standard is the higher, “but-for”, standard.

What The Ruling Means:

This finding essentially means that an employee must show that retaliation occurred because of an employee’s complaint. If there were other legitimate motivating factors for an employer’s actions after the complaint, the employer can escape liability for retaliation. This ruling will affect a wide variety of retaliation claims, including sex discrimination, race, and potentially even other discrimination law that is based on Title VII.

Employment discrimination law is a complex area that involves both employment and tort law. Having an experienced employment attorney on your side is vital to a successful discrimination lawsuit. The employment lawyers of Baker Law Group, LLP can help you if you have been wrongfully discriminated against. To schedule your free consultation call (858) 452-0093 today.

 

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Reasonable Accommodation and the Interactive Process in Disability Cases

Employee Discrimination , ,

ADA ActOne of the biggest sources of conflict between disabled employees and their employers is deciding whether to grant an employee a reasonable accommodation as required by the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA).

What is the Interactive Process?

The interactive process is a shorthand way of describing the informal negotiations that occur between an employer and employee as they attempt to find a reasonable solution under ADA and FEHA. This process is critically important because if an employer fails to engage in the interactive process, the refusal to engage can be seen as a violation of disability law in and of itself.

Although there are no set guidelines for how the interactive process should work, it is critical that the employer take steps to work with the employee and to ensure that he or she is notified of the existence of a reasonable accommodation.

Problems that can arise during the interactive process include when the communications between employer and employee come to an impasse or breakdown. For example, if the employer refuses to discuss options or rejects accommodations without reason, despite the proposal being clearly simple fixes and not constituting an undue hardship. In these situations an employer may become liable for failure to engage in the interactive process under California law.

The Case of Wysinger v. Automobile Club of Southern California

For example, in the case of Wysinger v. Automobile Club of Southern California (AAA) (2007) 157 Cal. App. 4th 413 an employee, Wysinger, suffered from lupus and rheumatoid arthritis. After his employer AAA instituted plans to reduce the pay of senior employees, he filed an age discrimination claim and also a claim that the employer failed to reasonably accommodate his disabilities because it failed to discuss options in reducing his commute time. Wysinger had requested a transfer in order to reduce his commute time; however AAA rejected this and did not raise any other possibilities.

The California Court of Appeals found that AAA could not rely on its rejection of Wysinger’s suggestion and claim that Wysinger had the burden to request other reasonable accommodations because it is not up to an employee to request multiple types of accommodation that an employer may choose from. The court upheld that under FEHA failure to engage in the interactive process can be seen as a separate claim from failure to provide reasonable accommodations.

If you have a disability and your employer or former employer failed to discuss reasonable accommodations with you after you told them you needed accommodation, you may be entitled to damages. To learn more, contact the experienced California Employment law attorney Michelle Baker. Schedule your free consultation today by calling (858) 452-0093.

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The Basics: Resolving a Lawsuit

Employee Discrimination, Wrongful Termination , , ,

If you are considering bringing a case against your employer, you may be envisioning a long and unpredictable battle in the courtroom. However, there are several ways that your disability discrimination or wrongful termination lawsuit may be settled, and not all lawsuits necessitate a formal courtroom trial.

When your employer discriminates against you and you decide to take action, the employer is subjected to major financial loss far beyond that any rational organization would care to lose. The cost to defend a disability discrimination or other wrongful termination lawsuit is astonishingly high. For example, defense attorneys in California may cost employers $450 per hour or more if the employer does not have the proper insurance. For these reasons it is often in the best interests of the employer to settle a pending claim without an expensive and potentially lengthy trial. That is not to say that every lawsuit will be settled out of court without trial, but the vast majority of non-frivolous lawsuits are. There are three primary ways to solve a discrimination lawsuit: negotiation, mediation, or arbitration.

Negotiation

Negotiation is a tactic that both sides will employ to get the case settled. There are many different styles and strategies of negotiation. Negotiation is often initiated with a demand letter, which may propose a formal negotiation meeting. If formal negotiations break down, negotiation can continue to play a key role in mediation.

Mediation

Mediation is when the employer and employee meet and discuss the merits of their positions with a neutral 3rd party, a mediatory. The mediator will question the parties and attempt to get the parties to rethink their approaches and come to a final mutually agreeable solution. This process is informal, and generally non-binding, unless the parties agree to write out a settlement agreement during the mediation.

Arbitration

Arbitration is similar to mediation but is much more like a trial, although the arbitration rules are less formal than traditional court hearings. Arbitration may be the first resort for many employment cases because many large employers require their employees to sign arbitration agreements that require the employees to forgo suing the employer in court, leaving arbitration as the only resolution process.

There are many legitimate reasons why arbitration is the least favored dispute resolution system for employees.First, the employer’s arbitration agreement may require that the arbitrator be chosen from a specific panel of arbitrators. Although the arbitrators will not have any interest in the employer in particular, the employer may be a repeat player in arbitration so the arbitrator may slightly favor the employer so that the employer continues using arbitrators from the selected panel. Although most large arbitration organizations can avoid this problem, smaller arbitration panels are more easily susceptible to this bias. Second, arbitration may not allow the employee the benefits of having full discovery, which would allow the employee to obtain evidence that he or she might not otherwise ever get to see. Finally, arbitration generally takes away the right to a jury trial.

To learn more about lawsuit or settlement options for your disability discrimination or wrongful termination lawsuit, contact California employment attorney Michelle Baker today. Schedule your free consultation online or call us directly at (858) 452-0093.

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Disability Discrimination Lawsuits Do Not Necessarily Result in Termination

Employee Discrimination , ,

One of the most easily misunderstood topics in discrimination law—including disability discrimination and retaliation lawsuits—is what actions actually constitute discrimination. In regards to disability discrimination, the Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) offer two different definitions for discriminatory actions.

Discrimination According to FEHA

FEHA specifically lists actions that would be discriminatory under Government Code Section 12940, subd. (a). It includes all of the following employer actions that may be motivated by an individual’s perceived disability:

  • Refusing to hire;
  • Refusing to train for a program that would lead to employment;
  • Firing from a job or training program that would lead to employment;
  • Or discriminating in the terms of employment including compensation, conditions, or privileges.

Discrimination According to ADA

ADA, on the other hand, leaves the definition of “discrimination” open to more interpretation. ADA’s list of discriminatory acts includes the above list, but also includes discrimination in regards to job application procedures and job training. Additionally, Section 12112 of ADA forbids acts based on a job applicant’s disability that limits, segregates, or classifies the job applicant in a way that would “adversely affect the opportunities or status” of the applicant.

DisabilityAn Example from the California Court of Appeals

The California Court of Appeals recently reviewed a case that showed the limits of what an adverse employment action could be under California law. In the case of Jeffrey v. Temple City, 2013 WL 501426, (Feb. 11, 2013) an employee, Randolph Jeffery, brought a disability discrimination claim under FEHA. Jeffrey was a custodian for the Temple City School District who claimed that he was terminated from the school district after receiving a serious injury from a car accident. Jeffrey claimed that he was terminated directly because of the disability he received in the car accident.

However, the School District argued that it did not in fact terminate Jeffery. Rather, they sent Jeffrey a letter saying that he would be placed on a 39-month rehiring list, and that at the end of the 39 months Jeffrey would be rehired. However, Jeffery said that he believed that he was being terminated because the title of the letter he received read: “RE: Termination of Employment.” Ultimately, the court held that getting placed on a rehiring list in this case was not an act of discrimination, because Jeffrey could not prove that he could do his job duties with reasonable accommodation, and being placed on the list was not actually a termination because he was to be rehired at a later date.

The Jeffrey case demonstrates the limits of what a discriminatory action can be, but it also demonstrates the importance of getting legal advice as soon as possible to help you understand the full extent of your rights. If you have been the victim of discrimination contact an experienced attorney right away. Contact the experienced California attorneys of Baker Law Group, LLP today for a FREE Consultation.

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Pregnant Mothers May be Entitled to More Than 19 Weeks Leave

Employee Discrimination, Wrongful Termination , , , , , ,

Pregnancy DiscriminationAn Overview of Pregnancy Leave Law:

Pregnancy Disability Leave Law (PDLL) and the California Family Rights Act (CFRA) allow women to take disability leave while pregnant and after delivery. However, even with the above-mentioned leave afforded by both acts, some women experience complications or unique situations that keep them from returning to work before the statutorily imposed time frames.

According to the California Court of Appeals, some women may now be entitled to even more pregnancy leave.

Sanchez v. Swissport

In the case of Sanchez v. Swissport, Inc., Cal. Ct. App. Feb. 21, 2013 an employee, Ms. Sanchez, was diagnosed with a high-risk pregnancy that required extended bedrest. She applied for and pregnancy leave and was granted 19 weeks of leave from her employer as required by PDLL. However, Ms. Sanchez was still unable to return to work after the leave period expired and still had 3 months to go before she could return to work. As a result, her employer terminated her position. Ms. Sanchez then filed a lawsuit based on gender discrimination, citing the employer’s failure to engage in the interactive process to determine whether she could be provided with reasonable accommodations.

Her employer argued that it was not required to provide Ms. Sanchez with additional leave because she had exhausted all leave that was required by PDLL and CFRA. However, the trial court disagreed. The employer appealed and the California Court of Appeals upheld the decision that the employer was wrong.

The Role of FEHA and CFRA

The Court ruled that simply providing 4 months of leave under PDLL does not entitle the employer to avoid the separate requirements of the Fair Employment and Housing Act (FEHA), in which an employer must provide reasonable accommodations to employees with disabilities. Ms. Sanchez argued that she would have been able to return to work shortly after delivery and that it would not have been an undue hardship on her employer. The court agreed that this in theory could have been a reasonable accommodation.

Although the court did not address the issue of CFRA, it is worth mentioning that after giving birth an employee is entitled to up to 12 weeks of leave under the CFRA in order to care for a new child.

If your employer or former employer has taken action against you or terminated you after taking pregnancy disability leave, you may be entitled to a lawsuit to recover your wages and other damages. To learn more contact the experienced California Employment Law attorneys of Baker Law Group, LLP.  Schedule a free consultation by calling (858) 452-0093 today.

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Recovering Damages in Disability Discrimination Lawsuits

Employee Discrimination

When an employer illegally discriminates against a disabled employee, the employee is entitled to a wide array of damages. A major issue in many disability cases involves calculating and proving damages. These issues are sometimes not fully fleshed out until trial. Although many individuals are discriminated against, and file claims against their employers, less than 5 percent of cases actually go to trial. This means that damages are decided either by the court on a motion or by the parties through settlement and other alternative dispute resolution means. This is usually a good thing for the employee because it means they can save significant time in their case.

Disability discrimination cases are brought either under the Fair Employment and Housing Act, the Americans with Disabilities Act, the Rehabilitation Act, or bring a claim for wrongful termination. Although an employee can allege violations of all these laws at the same time, they can only recover from such claims under one of the above theories. This post will focus on remedies under the Fair Employment and Housing Act (FEHA).

Fair Employment and Housing Act

Under FEHA, employees can receive back pay for wages they should have been paid for the past 2 years from the time of the illegal action of discrimination until the date of judgment. This is also the case if the employee is reinstated or is no longer available for reinstatement, because the employee got a new job. Front pay may also be also available. Front pay is designed to compensate the employee for wages he or she would have earned after judgment, up until the court determines that the employee has recovered from discrimination.

Employee Responsibilities

However, an employee has a duty to mitigate damages. An employee can mitigate their back or front pay damages by looking for suitable employment. An employee may have to show the court that they have been making a reasonable job search. Further, some income sources may be deducted from back pay, such as severance pay received. Unemployment or other similar state benefits would not be deducted.

Emotional Damages

Emotional distress damages can also be recovered, and these damages are potentially significant. However, once an employee or job applicant puts their emotional state at issue in the litigation, it opens the door for a wide range of questions involving the employee’s emotional state, and can involve the hiring of experts to determine the truthfulness of the employee’s claim for emotional damages.

Punitive Damages

Punitive damages are possibly available in a FEHA case against private employers, but these damages are more difficult to prove than other damages because they require that the employer acted with malice, oppression, fraud, or a conscious disregard for the plaintiff’s rights. Punitive damages are not available against a public employer. Other damages may also be available in FEHA cases, including compensatory damages.

If you have been discriminated against due to your disability or perceived disability, contact a California employment law attorney right away. You may be entitled to a lawsuit or settlement. Contact the experienced California Employment Law Attorneys of Baker Law Group, LLP. Call (858) 452-0093 to schedule your free consultation.

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