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Organ Donors Eligible for Disability Benefits

Non Compete AgreementsCalifornia disability law allows those who are associated with disabled individuals to receive protection against disability discrimination. In this post, we will use a past case from the California Courts of Appeal to demonstrates this protection. In this case, a man who planned to donate a kidney to his disabled sister won a disability discrimination appeal.

In Rope v. Auto-Chlor System of Washington, Inc. a recently hired employee informed his employer, Auto-Chlor, that he intended to donate his kidney to his disabled sister. The employee then attempted to take time off under a new law associated with such cases, known as the Michelle Maykin Memorial Donation Protection Act (DPA). The employee’s manager did not respond to his request to take leave, so the employee complained to management. However, just two days before the law took official effect, Auto-Chlor terminated the employee for allegedly “poor performance.”

The Employee’s Claim

The employee then sued Auto-Chlor for several violations including associational disability discrimination, retaliation for a protected activity, violation of the DPA, and wrongful termination in violation of public policy. The trial court dismissed the employee’s claims but the court of appeals reversed the decision, allowing the associational disability discrimination and wrongful termination claims to proceed.

California Court of Appeal’s Decision

The California Court of Appeals decided that the employee had provided enough evidence to show that the employer had discriminated against him. The discrimination was determined to be based on his relationship to his disabled sister and the fact that the employee would soon become disabled himself after the kidney donation surgery was complete. These facts could have supported a claim for wrongful termination and associational discrimination.

What Is Associational Discrimination?

Associational discrimination claims are a powerful tool to fight discrimination in the workplace. Such claims cover situations in which the employer takes adverse action (such as termination or harassment) against the employee for a disability that an employee’s close family member or spouse has. It also covers claims as the one in Rope discussed above, where the employer fears incurring expenses due to the employee’s association with a disabled person. It is possible that an employer may fear that due to the relationship with the disabled family member, the employee will have to take time off to care for them, or possibly raise the costs of the employer-sponsored medical benefits plan.

Keep in mind that the employer here seemed to be trying to illegally discriminate against the employee before the new law that would have protected him took effect. Today, this would be much more difficult as the DPA is now in full effect and protects employees by allowing them to take 30 days off in order to donate organs.

If you have been the victim of discrimination contact an experienced attorney right away. Call attorney Michelle Baker at (858) 452-0093 or submit your information online for a Free Consultation.

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The Basics: Resolving a Lawsuit

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.