Men-in-Wheelchair.jpgUnder the ADA and FEHA, the employer has the duty to identify and implement a reasonable accommodation to allow a disabled employee to perform the essential functions of the job. Common pitfalls for employers in determining appropriate accommodations are:

1.     Over-reliance on the written job description

Job descriptions are critical in the disability interactive process

Retirement Sign.jpgThis blog post was authored by Charla Welch

Retirement for disability can be an involved, complex, and confusing process. This is especially true where the employee at issue is a local safety member.  Public agencies often ask for our counsel when an application for industrial disability retirement (IDR) is filed.  In a new case, the

Pregnant.jpgThe U.S. Supreme Court is considering whether to hear the appeal of Peggy Young.  She wants the Court to decide whether, and in what circumstances, the federal Pregnancy Discrimination Act of 1978 (“PDA”) requires an employer to provide work accommodations to pregnant employees.  If the Supreme Court decides to take this case, it might possibly

apple.JPGThis blog entry was authored by Hengameh S. Safaei 

In a case of first impression, K.M. v. Tustin Unified School District, the Ninth Circuit held that a public school district’s compliance with its obligations to a deaf or hearing-impaired student under the Individuals with Disabilities Education Act (“IDEA”) does not necessarily establish compliance

Pregnant.jpgNew Fair Employment and Housing Commission regulations took effect December 30, 2012 and deal with disability discrimination.  This blog post will focus on the impact of the new regulations on issues related to pregnancy and the treatment of pregnancy related conditions as disabilities. 

The new regulations expand the scope of pregnancy related conditions that can

AnotherGavel.jpgIt pays to read statutes carefully. Many statutes authorizing lawsuits for employment discrimination allow an award of attorney’s fees to the prevailing party. Almost uniformly, these statutes have been construed as authorizing an award of attorney’s fees to a prevailing plaintiff as a matter of course but only to a prevailing defendant when the lawsuit

Although medical marijuana use is legal under California state law, it remains illegal under the federal Controlled Substances Act.  Plus, even though medical marijuana use is legal in California, in 2008 the California Supreme Court, in Ross v. Ragingwire Telecommunications, ruled that an employer may discipline an employee who tested positive for medical marijuana. 

TimeSheet.jpgMost of us assume that showing up for work is an essential part of our job. Most employers have attendance policies in place that require employees attendance at the work location.  However, courts have found that regular attendance is not necessarily an essential function for all jobs.  In a recent case, an employee with a

Stairs.JPGThere are numerous signals that the U.S. economy is recovering – unemployment numbers are improving in California and elsewhere, there are mixed indications of a brighter housing market, and the stock market over the last months has improved substantially.  The overall mood may have also turned a corner, with less news of economically motivated protests, or of waves of foreclosures, and more talk of IPO’s and new business ventures.

For some California public sector employers, a brighter outlook is corresponding with more hiring.  Although this is good news, the hiring process does carry legal risks, just as did downsizing and other like matters in bad economic times.

Here are six areas of the hiring process in the public sector that deserve particular attention from a legal perspective.  This is not an exhaustive list of such areas, or a complete list of considerations, but it provides a general framework for what to trouble-shoot before hiring begins in earnest.  

1.         Utilize Accurate Job DescriptionsAt the very outset of the hiring process, it is critical to develop accurate and sufficiently detailed job descriptions.  These will prove important not only for hiring, but also for legal issues that may arise later during the course of the employment relationship.  An accurate job description will help the agency demonstrate that questions on job applications and during interviews are legitimate and non-discriminatory, and help those in the hiring process focus on eliciting those facts that are job-related.  Also, in the context of disability discrimination laws, in both the hiring process and during employment, an agency’s identification of the “essential functions of the job” will be critical.  Under both federal and state law, a Court will treat the job description prepared by the employer prior to advertising or interviewing for the job as evidence of what are essential functions. 

Detail in the job description can be very important also, because vague or overly general job descriptions can fail to give proper guidance either to applicants deciding whether to seek the job, or to agency personnel making the hiring decisions.  Misunderstanding about the nature of the job can produce charges of discrimination or of failure to accommodate.  At a minimum, a job description should contain: (a) job-related educational requirements, (b) necessary vocational skills, (c) required work experience, (d) examples of duties, (e) unusual physical requirements, (f) work hours, and (g) compensation.  Where possible, job requirements should be validated by experts using professionally accepted validation methods.  

2.         Establish a Uniform Screening Process for ApplicationsThe next phase to consider is the initial “screen” of applications for those who are not qualified or not competitive in light of the quality and experience of other applicants.  As a general matter, an employer’s initial “screen” must be conducted in a neutral manner that does not result in an unjustifiable, disproportionate impact with regard to a protected characteristic, e.g. race, gender, religion, age over 40, etc.  Accordingly, the agency should establish a set of job-related screening criteria which do not result in exclusion of individuals who are qualified and competitive for the job.  The agency should also have a process in place to make a separate review of the fairness and appropriateness of screening criteria, to make sure the screening guidelines are followed, and to confirm that decisions were not influenced by improper considerations. 

3.         Focus Interviews on Job-Related Questions, and Avoid Improper Questions:  Like other aspects of the hiring process, interviews must be non-discriminatory.  Questions should focus on qualifications for the job in question, and not pertain to protected characteristics.  The California Department of Fair Employment and Housing has promulgated a list of questions that cannot be asked in an interview.  Some unlawful questions are straightforward, such as asking about an applicant’s race, age, religion, or other protected characteristics.  But the list also encompasses some questions that bear indirectly on these matters, such as questions about the date of completion of school, religious days the applicant observes, or the applicant’s birthplace.  (The list of questions is available at:  The FEHA publication lists how questions can be phrased in a way that requests information the employer legitimately needs without creating an impression of bias.  (For example, it would be appropriate to ask which languages an applicant speaks, if relevant to the job at issue.) 

It is vital that agencies ensure that those employees conducting interviews have received training in what are protected classifications, and what questions are prohibited – and of course those conducting interviews should have become thoroughly familiar with the job description and nature of the job in question.  

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CaringHands.jpgBalancing work and family is becoming increasingly difficult.  Workers are not only responsible for caring for their own children but many are now the primary caretakers of aging parents.  It is also not uncommon for grandparents to care for grandchildren or for an aunt or uncle to care for a niece or nephew.  The U.S. Equal Employment Opportunity Commission recently held a public meeting that addressed the problems of workers with caregiving responsibilities.  During this meeting, the EEOC said discrimination against caregivers is an area of vital concern.  In addition, multiple panelists told the Commission about numerous cases of caregiver or “family responsibility” discrimination in the workplace.        

According to a report prepared by the Center for WorkLife Law, approximately four states and 63 local governments have adopted laws that prohibit discrimination against workers with caregiving responsibilities.  However, there is currently no federal or California law prohibiting discrimination or retaliation against caregivers.  Two attempts were made by the California Legislature to add “familial status” as a protected class under the Fair Employment and Housing Act.  Both attempts were unsuccessful.  Had the law passed, it would have protected employees with caregiver responsibilities from discrimination. 

Although being a caregiver is not a protected class under federal or California law, the EEOC has recognized circumstances in which discrimination against caregivers might constitute unlawful disparate treatment under Title VII of the Civil Rights Act of 1964.  For example, stereotypes based on gender may give rise to discrimination claims based on sex.  Such discriminatory conduct can include denying a female employee a promotion because the employer assumes she will want to spend time with her children instead of at work.  Another example of prohibited conduct based on sex is allowing a female employee, but not a male, to leave early twice a week to care for an elderly parent. 

Stereotyping of caregivers may also constitute discrimination under the American with Disabilities Act of 1990.  The ADA prohibits discrimination against an employee who is associated with an individual with a disability such as a child, spouse or parent.  For example, a job applicant may not be denied a position because the employer improperly assumes that the applicant’s caregiving responsibilities for a child with a disability will negatively affect his or her attendance and work performance.  Under this scenario, the applicant would have a strong argument that the employer violated the ADA by refusing to hire someone because of his or her association with an individual with a disability. 

In addition to Title VII and the ADA, employees who believe they have been harassed, discriminated or retaliated against because of their caregiver responsibilities may also have claims under the Equal Pay Act, Pregnancy Discrimination Act, California Family Rights Act and Family Medical Leave Act.  According to the Center for WorkLife Law, discrimination lawsuits relating to caregiving responsibilities have been filed in every state in the country.  Also, a significant increase has been noted in the number of cases relating to workers with elder care responsibilities.

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