New 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
It 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.
Most 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
There 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 Descriptions: At 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 Applications: The 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: http://www.dfeh.ca.gov/res/docs/publications/dfeh-161.pdf.) 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. Continue Reading Trouble-Shooting The Hiring Process For A Public Agency
Balancing 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.Continue Reading Does Discrimination Occur Against Workers With Caregiving Responsibilities?
The California Court of Appeal recently highlighted a fundamental flaw in the California Civil Jury Instructions (“CACI”) on a cause of action for retaliation in violation of the Fair Employment and Housing Act (“FEHA”). The instruction is missing the element of retaliatory intent or animus. This flaw has not been brought to the forefront previously
How many times have you heard LCW attorneys tell you to timely and accurately complete performance evaluations? You likely hear this advice at every Employment Relations Consortium training you’ve attended. A recent case reminds us all how crucial honest performance evaluations and other forms of progressive discipline can be.
In the case of Dickerson v. Board of Trustees of Community College District No. 522, Bobby Dickerson was employed as a part-time janitor by an Illinois Community College District. Between 2005 and 2007, his supervisor gave him written warnings issued for his refusal to perform work assignments, failure to secure job-related equipment, and for leaving the worksite without permission. In 2005, 2006 and 2007, Dickerson applied for full-time positions with the district, but never succeeded. Shortly after his third failed attempt at a promotion, Dickerson complained to the district that he was being discriminated against because of his “personal traits” and a speech defect.
Dickerson then received a performance evaluation in December, 2007 for the period of November, 2006 through November, 2007. Dickerson received “unsatisfactory” ratings in three of the seven performance categories. The supervisor also provided written comments such as, “Dickerson is consistently late for work and needs to improve;” “jobs need to be redone because of not listening to the job instructions;” and that Dickerson “does only the bare minimum to meet job requirements.” Dickerson disagreed with the evaluation and filed a grievance with his union alleging the district gave him the evaluation in retaliation for his exercise of union activities.
In February, 2008, Dickerson filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging the district failed to promote him to a full-time position because it believed he was mentally disabled in violation of the Americans with Disabilities Act (ADA). Dickerson had a below average IQ which indicated “mild mental retardation.”
Shortly after filing the EEOC complaint, Dickerson approached the Vice President of Human Resources and asked what he should be doing differently in order to be promoted to a full-time position. The Vice President replied to the effect of, “you are suing your employer and you should not be suing your employer.”Continue Reading Documentation Of Poor Work Performance Defeated Claims Of Discrimination And Retaliation In Violation Of The ADA
Since the beginning of month, the U.S. Equal Employment Opportunity Commission (“EEOC”) has filed a dozen lawsuits against employers for disability discrimination. Four lawsuits, which were filed in the Northern and Eastern Districts of the U.S. District Court, address various facets of disability discrimination.
One of the cases was filed against Walgreens drug store
This guest post was authored by Alison Carrinski
Emerging technologies, such as e-book readers, seem to be everywhere and growing in numbers. E-book readers offer students the ability to download books instantaneously and carry hundreds of books on a hand-held device. But given that some e-book readers do not have text-to-speech functionality or Braille displays