Is inability to work a particular job because of stress a disability?

Employees frequently complain that they suffer stress symptoms from work. A supervisor makes an employee feel anxious. Dealing with customers all day gives another employee a headache. Working the night shift disrupts the digestive system. In such situations, it is not uncommon for the employee's doctor to write a "work restriction" that the employee not be placed in situations that cause stress. "Jack is not to have any contact with Supervisor X." "Jill must not be assigned to the night shift." "Brooke should not be given any assignments that cause stress." If the employer does not follow the doctor's instructions, and gets sued, one of the issues will be whether the employee has a disability that must be accommodated.

The Third District of the California Court of Appeal has ruled that an inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of job performance was not a disability. In Higgins-Williams v. Sutter Medical Foundation, Case No. C073677 (May 26, 2015), a clinical assistant told her doctor that she was stressed because of interactions at work with human resources and her manager. The doctor diagnosed adjustment disorder with anxiety, and stated that she could perform her job with no restrictions if she were transferred to a different department under a different manager. The Court of Appeal affirmed summary judgment for the employer on the employee's disability claims because she could not prove that she had a disability.

The Third District relied on Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, which reached a similar result in a disability case brought by an employee who claimed that she was stressed out by her supervisor. Reliance on Hobson is significant, because that decision had preceded the California Supreme Court's announcement that a disability under California law was a condition that limited a major life activity. See Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019. Before Colmenares, California courts had generally followed the federal substantially limits standard. Further, California had added a provision to the Fair Employment and Housing Act stating that working was a major life activity "regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments." Cal. Gov't Code section 12926.1. Higgins-Williams confirms the continuing validity of Hobson despite the changes in the law that have followed. For a recent unpublished decision that applies a similar approach, see Safari v. County of Los Angeles, Case No. B255142 (May 1, 2015).

For a case with some good language for employers under the federal standard see Dewitt v. Carsten, 941 F.Supp. 1232 (D. Ga. 1996):

Plaintiff, like anyone else, would like to hold a job as stress-free as possible. Traditionally, when an employee feels that a job is too stressful, she generally has three options: she first tries to obtain a reassignment with her employer; if that is not successful, she then either finds a less stressful job somewhere else or tries to stick it out with her current position. Plaintiff argues that the ADA provides a fourth option whereby she can insist that her employer transfer her to another position and can further dictate to her employer the one particular job that she will agree to hold, as well as the conditions under which she will perform that job.

Hopefully, in many work situations, the employer is willing and able to find another job more suited to an employee's needs and skills whenever that employee has a job that is causing her to feel stress. An employer, however, is not required to reassign an employee to a less stressful job, absent a legal requirement to do so. This Court agrees with the magistrate judge that plaintiff's particular stress is not a disability that legally mandates the employer to reassign plaintiff or offer her another accommodation.

California Supreme Court Says Franchisor Not Liable For Harassment By Franchisee's Employee

Although Domino's Pizza exercises some control over the conditions at its franchisees' pizza stores, it does not exercise enough control to qualify as the employer of those who work in the stores. So the California Supreme Court has ruled in a case alleging sexual harassment at a franchisee's store. Patterson v. Domino's Pizza, LLC, Case No. S204543 (Aug. 28, 2014).

In a 4-3 decision, the Court explained that its ruling turned on the common law principles of agency and respondeat superior. Those principles look to the degree of control exercised over the employee's performance of employment duties. To be an employer, the entity must have day-to-day authority over such matters as hiring, firing, direction, supervision and discipline. In the case before it, the agreement between Domino's and its franchisee left such matters in the hands of the franchisee. The fact that a Domino's representative had told the franchisee that the alleged harasser should be fired did not establish control over the discipline process.

The Court recognized that each case would have to be considered on its facts, and that there may be circumstances in which a franchisor has exercised sufficient control to render itself a joint employer with its franchisees. But, the mere existence of a franchise agreement specifying standards, procedures and requirements to ensure product quality and customer service, and to protect trade names, public reputation and commercial image will not be sufficient.

The opinion asserts that the result is consistent with the rulings in an "apparent majority" of decisions in other states. See, for example, Kennedy v. Western Sizzlin Corp. (Ala. 2003) 857 So.2d 71.

Are Franchisors Joint Employers With Their Franchisees

The recent announcement by the NLRB's Office of the General Counsel that it has authorized complaints against McDonald's USA for NLRA violations allegedly committed at franchised restaurants raises the general issue of potential franchisor liability for labor and employment violations by their franchisees. Reported decisions on the subject are scarce. In two cases decided over 45 years ago, the NLRB refused to find that a franchisor was a joint employer. Speedee 7-Eleven, 170 N.L.R.B. 1332 (1968) and S.G. Tilden, Inc., 172 N.L.R.B. 752 (1968). If any of the current complaints proceed to adjudication, the NLRB, and then the federal courts, will determine whether the NLRA's definition of employer includes franchisors.

The issue has arisen under other laws. For example, the California Supreme Court has under review a Court of Appeal decision holding that Domino's could be held liable for sexual harassment by one of its franchisee's employees. The case was argued in June 2014. For a discussion of the decision rejecting liability, see this blogpost.

Employees have also sought to hold franchisors liable for wage and hour violations by franchisees. For example, earlier this year, class action lawyers in California, New York and Michigan filed lawsuits claiming that McDonald's was responsible for wage and hour violations by its franchisees.

For a newspaper columnist's view on the issue, see the LA Times Michael Hiltzik's column "The NLRB-McDonald's ruling could be the beginning of a franchise war."

Pregnancy-Related Conditions As Disablities

Recent developments in California and federal law make clear that employers are going to have to consider reasonable accommodations under the disability laws for pregnant women who have impairments related to their pregnancies. Such accommodations may include unpaid time off or assignment to a light duty position while the pregnant employee is unable to perform her usual job duties.

In the not too distant past, the common wisdom was that pregnancy was not considered a disability. See, for example, Gorman v. Wells Mfg. Corp., 209 F. Supp. 2d 970 (S.D. Iowa 2002), aff'd, 340 F.3d 543 (8th Cir. 2003) (periodic nausea, vomiting, dizziness, severe headaches, and fatigue were not disabilities within the meaning of the ADA because they are "part and parcel of a normal pregnancy" and are "short-term").

More recently, federal and state law have moved toward recognition of impairing conditions caused by pregnancy as disability. At the federal level, the amendment of the Americans with Disabilities Act to make clear that temporary conditions may be disabilities has led the EEOC and several courts to conclude that temporary limitations caused by pregnancy are disabilities requiring accommodations. See EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (July 14, 2014) and the cases cited at footnotes 149 and 150 through 154.

In California, the Department of Fair Employment and Housing's regulations state that a woman who has a disability resulting from pregnancy may be entitled to leave under the disability provisions of the Fair Employment and Housing Act. 2 CCR § 11047. Last year, the Second District Court of Appeal in Los Angeles ruled that a pregnant woman who had exhausted her four-month leave entitlement under the Pregnancy Disability Leave Law could nonetheless pursue a claim under the Fair Employment and Housing Act for failure to accommodate. Sanchez v. Swissport, Inc., 213 Cal. App. 4th 1331 (2013).

A right to unpaid leave as a reasonable accommodation would be in addition to the leave rights that pregnant women already have under the federal Family and Medical Leave Act (up to 12 weeks) and the California Pregnancy Disability Leave Law (up to four months while disabled by pregnancy).

California Employment Law Changes for 2013

California State Capitol, Sacramento

The Legislature and Governor Brown have completed their law-making activities for the 2011-2012 regular legislative session. The following laws that affect employers will become effective January 1, 2013:

Social media: AB 1844 bars employers from requiring or requesting an employee or applicant for employment to disclose a user name or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media. It also prohibits retaliation for not complying with a request or demand by the employer that violates the statute. There are exceptions for requests to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, and for requiring or requesting an employee to disclose a user name, password, or other method for the purpose of accessing an employer-issued electronic device. The provisions are codified in new Labor Code section 980.

Elimination of the Fair Employment and Housing Commission: SB 1038 eliminates the Fair Employment and Housing Commission as part of a broad effort to eliminate duplication in state government. It transfers the duties of the Commission to the existing Department of Fair Employment and Housing and to a newly created Fair Employment and Housing Council. It also expands specified powers of the DFEH related to complaints, mediations, and prosecutions, and provides mandatory dispute resolution at no cost.

Accommodation of religious dress and grooming practices: AB 1964 amends the Fair Employment and Housing Act's definition of religious practices that employers are required to reasonably accommodate to include religious dress and grooming practices. "Religious dress practice" shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. "Religious grooming practice" shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed. An accommodation that would require that person to be segregated from the public or other employees is not a reasonable accommodation. No accommodation is required if it would violate the FEHA or other laws prohibiting discrimination or protecting civil rights.

Further workers compensation system reform: SB 863 amends various provisions of the Workers Compensation Act in the hopes of eliminating waste and improving efficiency. A press release from the Governor's Office described the changes and hoped for savings.

Breastfeeding: AB 2386 amends the FEHA's definition of "sex" to include breastfeeding or medical conditions related to breastfeeding. The effect is to make it unlawful for an employer to discriminate or harass an employee because she is breastfeeding or has medical conditions related to breastfeeding.

Inspecting employment records: AB 2674 requires an employer to maintain personnel records relating to the employee's performance or to any grievance concerning the employee for at least three years, and to provide a current or former employee, or his or her representative, an opportunity to inspect and receive a copy of those records within 30 days of receipt of a written request, except during the pendency of a lawsuit filed by the employee or former employer relating to a personnel matter. An employer need not comply with more than 50 requests for a copy of employee personnel records from an employee representative in one calendar month. The new requirements do apply to an employee covered by a valid collective bargaining agreement if the agreement provides, among other things, for a procedure for inspection and copying of personnel records. In the event of a violation a current or former employee may recover a penalty of $750, and obtain injunctive relief and attorney's fees.

False Claims Act: AB 2492 strengthens the California False Claims Act, which is a tool for fighting fraud and abuse by government contractors, and will enable the state to continue receiving millions of dollars in federal incentive awards for recovering Medi-Cal false billings.

English Only Policies

Employers concerned about how their customers and other employees may react to the use by some employees of languages other than English may wish to impose an English only policy. The EEOC recently settled a case that involved allegedly improper language policies at a large hospital in California's San Joaquin Valley. The press release announcing the settlement is available here. Both state and federal law limit employers' ability to restrict use by their employees of languages other than English.

Under Title VII, English only rules may create liability for national origin discrimination. As explained in the EEOC's policy manual section on national origin discrimination, an English only rule must be justified by business in order to survive a Title VII challenge. The manual identifies the following as relevant considerations: Evidence of safety justifications for the rule, evidence of other business justifications for the rule, such as supervision or effective communication with customers, likely effectiveness of the rule in carrying out objectives, the availability of alternatives to an English only policy, and English proficiency of workers affected by the rule. Here is an example of an alternative from the manual:

"At a management meeting of XYZ Electronics Co., a supervisor proposes that the company adopt an English-only rule to decrease tensions among its ethnically diverse workforce. He reports that two of the employees he supervises, Ann and Vinh, made derogatory comments in Vietnamese about their coworkers. Because such examples of misconduct are isolated and thus can be addressed effectively under the company's discipline policy, XYZ decides that the circumstances do not justify adoption of a facility-wide English-only rule. To reduce the likelihood of future incidents, XYZ supervisors are instructed to counsel line employees about appropriate workplace conduct."

In California, English only policies may violate the Fair Employment and Housing Act as a form of national origin discrimination, just as they may violate Title VII. But, the FEHA also contains an express restriction on English only policies in California Government Code section 12951 (enacted in 2001), which bars any policy that "limits or prohibits the use of any language in any workplace," unless "(1) The language restriction is justified by a business necessity, (2) The employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction." Business necessity means "an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact."

Establishing Essential Functions

Establishing the essential functions or duties of an employee's job is critical for assuring compliance with both the Americans with Disabilities Act and the disability provisions of the California Fair Employment and Housing Act. Both laws protect those employees who are able to perform the essential functions or duties of their jobs with or without a reasonable accommodation. The perils of not paying sufficient attention to defining the essential functions of a job are demonstrated by a recent case from the federal district court in Minnesota, which is described below.

The ADA defines the qualified individuals who are protected from discrimination as those who "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this sub chapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. section 12111(8).

The EEOC's regulations provide some guidance on what constitutes an essential function: "(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position. (2) A job function may be considered essential for any of several reasons, including but not limited to the following: (i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. (3) Evidence of whether a particular function is essential includes, but is not limited to: (i) The employer's judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs. 29 CFR section 1630.2(n).

The FEHA bans discrimination on the basis of mental or physical disability, but "does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations." Cal. Gov. Code section 12940, subd. (a)(1). The regulations promulgated under the FEHA by the Fair Employment and Housing Commission repeat the EEOC's definition at Cal. Code Regs. tit. ii, section 7293.8(g).

In the case from Minnesota, the plaintiff, the defendant bank's compliance officer, suffered from multiple sclerosis. Because of her condition, she required flexible hours that would allow her to work outside normal bank hours from time to time, but she was able to work a 40-hour work week. The bank discharged her immediately after it received the results of an FDIC examination that found fewer significant violations but more violations overall than in the previous examination. As one of its defenses to her lawsuit under the ADA, the bank claimed that she was unable to perform the essential functions of her job because she could not be present during all normal banking hours. The plaintiff claimed that she could perform some of her functions outside normal banking hours, pointing to the provision of a laptop and the fact that she had been allowed to work at home and outside normal banking hours. In denying summary judgment, the district court specifically noted the lack of any evidence that her essential job functions were established before she began discussions about reasonable accommodations with the bank. See Wandersee v. Farmers State Bank of Hartland, Case No. 10-4159 (D. Minn May 9, 2012).

Although an employer's written job description prepared before a dispute arises will not always be accepted as a proper assessment of essential functions, it will be persuasive, and may tip the balance in the employer's favor. Without such a prior written description of essential functions, the employer will certainly be at the mercy of a jury's after the fact assessment.

Which Law Tells Employers How To Treat Their Employees?

Recent news reports about labor law violations at plants operated by one of Apple's contractors in China prompt consideration of who may regulate an employer's relationships with its workers. An employer based in California may have employees in other states, and in other countries. Employers in other states and countries may have employees in California. Which rules must the employers in such situations follow?

Within the United States

Within the United States, the Constitution requires each state to give "full faith and credit" to "public Acts, Records, and judicial Proceedings of every other State." But, the Due Process Clause bars a state from applying its law to a dispute unless it has a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair. Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). A state may enforce its own law over another state's law if it has a materially greater interest.

Here are some specific applications of those principles:

Although any state that has sufficient contacts with the parties and the dispute may apply its workers compensation law, once a state has made a final award under its workers compensation law, other states are barred by the full faith and credit clause from awarding the worker additional compensation for the same injury. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943).

California has a strong policy against enforcement of non compete clauses under Business and Professions Code section 16600. Therefore, a California court should enforce that policy in a dispute over the employment of a non-California worker who had agreed not to compete with his former Maryland-based employer, where it would bar a California company from hiring the worker. Application Group, Inc. v. Hunter Group, Inc., 61 Cal.App.4th 881, 72 Cal.Rptr.2d 73 (1998).

California's Fair Employment and Housing Act does not apply to the relationship between a California company and its employees based on other states. Campbell v. Arco Marine, Inc., 42 Cal.App.4th 1850, 50 Cal.Rptr.2d 626 (1996).

California's wage and hour laws apply to work performed by out-of-state residents in California for California employers, but not to work performed by those employees in other states. Sullivan v. Oracle Corp., 51 Cal.4th 1191, 254 P.3d 237 (2011).

Outside the United States

When an employer based in the United States has employees in another country, it must comply with that country's laws, but the United States may also regulate the employment relationship. For example, Congress has expressly extended the reach of federal anti-discrimination protections to a U.S. citizen working in a foreign country for a United States employer, unless compliance would violate the law of the foreign country. See Public Law No. 102-166. Although it is generally assumed that Congress could constitutionally extend other employment laws to the operations of American companies overseas, it has declined to do so.

California law recognizes that an employer who complies with a foreign government's wishes may lack the discriminatory intent to violate the Fair Employment and Housing Act. In West v. Bechtel Corp., 96 Cal.App.4th 966, 117 Cal.Rptr.2d 647 (2002), an arm of the Saudi government contracted with a Bechtel entity for services on a project in Saudi Arabia. Bechtel terminated the plaintiff's involvement in the project after the Saudi entity objected to his employment because he was over 50. Because the Bechtel manager who terminated the plaintiff's involvement in the project lacked personal animus based on age, the claim for age discrimination lacked merit.

Foreign employers with employees in the United States must abide by the laws of  the United States and the laws of the states in which they have employees, unless the employee works for a foreign government on a diplomatic mission. In that case, the Foreign Sovereign Immunities Act bars liability.

Age Discrimination

Age discrimination is like other forms of discrimination, except when it is not. The federal Age Discrimination in Employment Act (ADEA) prohibits discrimination and harassment based on age against employers who are over 40. The California Fair Employment and Housing Act (FEHA) includes age over 40 among its protected characteristics. Until 1996, the ADEA allowed discrimination against those over 70. Since then the law has protected all employees over 40. Because the protections do not apply to those under 40, employers may prefer older employees without violating the statutes.

The EEOC's charge statistics show a rise in age discrimination complaints from 16,548 in 2006 to 23,465 in 2011. As a result, the agency has focused some of its enforcement efforts on age discrimination cases. For example,  in October 2011, it filed suit against the Texas Roadhouse restaurant chain, alleging that it discriminated against older workers.

Like those who sue based on other protected characteristics, age discrimination plaintiffs may prove their cases through the burden shifting approach established by the United States Supreme Court in the McDonnell Douglas case. See Reid v. Google, Inc., 50 Cal.4th 512, 235 P.3d 988 (2010); Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201 (9th Cir. 2008). Under that approach, the plaintiff must first establish a prima facie case by showing that he or she was (1) at least forty years old, (2) performing the job satisfactorily, (3) discharged, and (4) either replaced by a substantially younger employee with equal or inferior qualifications, or discharged under circumstances otherwise giving rise to an inference of age discrimination. However, the fact that the plaintiff was replaced by someone who was also over 40 does not defeat an age discrimination claim. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996).

Age discrimination law differs from that applicable to other protected characteristics in the following ways:

• If it costs more to provide the same benefit to employees over 40, the employer may pay the same amount for benefits for both those over 40 and those under, even if that results in workers over 40 receiving fewer benefits.
• Because of the 11th Amendment, state employees may not sue for damages in age discrimination cases, but local government employees may. Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).
• Although the ADEA allows state and local governments to use age as a basis for hiring and retiring law enforcement officers and firefighters, the FEHA does not.Other California statutes impose a mandatory retirement age of 60 on firefighters and law enforcement officers, but allow those in Los Angeles County to continue employment past 60 with medical certification of fitness for duty.
• Employers may establish compulsory retirement for a bona fide executive or high policymaker who has reached age 65 and is entitled to a pension benefit of at least $44,000.
• Releases of age discrimination claims are not effective unless the employee is advised to consult an attorney, is given 21 days to consider the terms of the release, and seven days to reconsider after signing the release.

Religious Institutions and Anti-Discrimination Laws

A recent decision from the Santa Ana division of the Fourth District Court of Appeal prompts a look at how the anti-discrimination laws apply to religious institutions. In Henry v. Red Hill Evangelical Lutheran Church of Tustin, No. G044556 (Dec. 9, 2011), the Court of Appeal affirmed the dismissal of a discrimination claim by a teacher at a church school who had been fired for living with her boyfriend and raising their child together without being married.The application of federal anti-discrimination laws to religious institutions is before the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553.

The applicable state law is the California Fair Employment and Housing Act. The applicable federal laws are Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. They deal with the issue in different ways.

The FEHA by its express terms does not apply to religious organizations at all. Under California Government Code section 12926(d), "'Employer' does not include a religious association or corporation not organized for private profit." Section 12926.2 contains exceptions to the exclusion for those employed in religious health care facilities that do not limit their care to those of a particular religion (but not including those in executive or pastoral care positions) and those employed by a nonprofit public benefit corporations affiliated with a particular religion that operates an educational institution as its sole or primary activity. Otherwise, a church or other religious institution cannot be held liable under the FEHA no matter what the employee's duties or what the basis for alleged discrimination. See, for example, Kelly v. Methodist Hospital of Southern California, 22 Cal.4th 1108, 997 P.2d 1169, 95 Cal.Rptr.2d 514 (2000) (age discrimination).

In contrast, the federal statutes allow religious organizations to give employment preference to members of their own religion, but otherwise prohibit employment discrimination. Thus, a Roman Catholic school may limit its hiring those of the Roman Catholic faith, but may not refuse to hire a Roman Catholic because of race, national origin, sex, or disability. The federal Courts of Appeals have also recognized a ministerial exception to application of the anti-discrimination laws based on the First Amendment. The EEOC has explained both principles in Questions and Answers: Religious Discrimination in the Workplace. In the Hosanna-Tabor Evangelical Lutheran Church and School case, the Supreme Court recognized the ministerial exception and applied it to bar a claim under the Americans with Disabilities Act.

Retaliation Lawsuits Cost Millions

Yet another multi-million dollar verdict highlights the substantial stakes in retaliation lawsuits. In Donald Bender v. City of Los Angeles, Case No. BC361139 (Nov. 12, 2008), an LAPD officer claimed that he was demoted and kicked out of the department's canine bomb unit after standing up for the only woman in the unit. The LAPD's lawyers argued that the plaintiff had improperly stored dangerous equipment, was insubordinate, and had problems getting along with others in the unit. The jury agreed with the officer an awarded him $3.6 million.

The Los Angeles Times reported that another jury last year awarded over $1 million to a female LAPD detective who said she was demoted after complaining that her former boss promoted women in exchange for sexual favors. Ya-May Christle v. City of Los Angeles, Case No. BC351899 (Oct. 3, 2007). In another 2007 case, a police commander received a $650,000 settlement based on allegations that he was denied a promotion after clashing repeatedly with the police chief.

A previous post on this blog described steps employers should take to reduce the risk of liability for retaliation claims, which included (1) preparing job descriptions, (2) preparing performance expectations, (3) preparing regular performance evaluations, and (4) documenting performance problems. If you have not taken these steps, these recent retaliation cases should provide the motivation to do so.

Liability For Bullying And Microinequities

Over the past few years, workplace bullying and microinequities not obviously based on protected characteristics have received much attention. Although the California Workers' Compensation Act preempts civil lawsuits for such claims unless a recognized exception to preemption applies, such conduct can pose liability risks. Such matters have been the subject of law firm commentary and an entire website.

The Workers Compensation Act preempts claims by an employee against the employer or a fellow employee for any injuries (including emotional injuries) that arise out of the employment relationship, even if based on conduct that is "manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability." See Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148 (1987).

The Act itself expressly exempts some injury claims from preemption, such as those resulting from a willful and unprovoked physical act of aggression of another employee (Labor Code section 3603(a)(1)) and from failure to install or removal of a guard on a power press (Labor Code section 4558). The courts have determined that claims based on other conduct may survive preemption if the conduct contravenes fundamental public policy or exceeds risks inherent in employment relationship. See Livitsanos v. Superior Court, 2 Cal.4th 744 (1992). The most important court-created exceptions are for claims under the anti-discrimination laws, and for wrongful termination in violation of public policy. See City of Moorpark v. Superior Court, 18 Cal.4th 1143 (1998) and Shoemaker v. Myers, 52 Cal.3d 1 (1990).

Although these principles would appear to severely limit liability, the reality is that the plethora of protected characteristics in the anti-discrimination laws and the multitude of public policies that can provide a basis for wrongful termination claims make almost any workplace unpleasantness a potential source of civil liability.

If an employee treats female employees unpleasantly, but is neutral to male employees, there may be a sexual harassment claim, even if the conduct is not expressly based on sex. See EEOC v. National Educ. Ass'n, Alaska, 422 F.3d 840 (9th Cir. 2005). An employee who appears equally abusive to all will create liability for an unlawful hostile environment by letting one epithet slip, even though a single epithet alone would not create liability. See Dee v. Vintage Petroleum, Inc., 106 Cal.App.4th 30 (2003) ("it is your Filipino understanding versus mine" created liability for harassment when combined with other abusive behavior).

To limit the risk of liability for hostile environment claims, the employer must intervene when an employee makes life unpleasant for other employees. Any such situation may turn into an unlawful harassment claim. Preventing unpleasant conduct will also make the workplace more comfortable for all, and promote employee productivity.

Religion in the Workplace

Employees do not leave their religious beliefs behind when they go to work. But, those beliefs seldom matter to employers or fellow employees. Where religious beliefs affect dress or appearance, there may be an impact in the workplace. There may be conflicts with the employer's practices and policies or with other employees. Religious beliefs may also have an effect when employees practice their religious beliefs at work. Both Title VII and the California Fair Employment and Housing Act forbid discrimination based on religion, and require employers to accommodate their employees' religious beliefs.

This is what happened in one workplace. A female former software developer sued the defendant temporary employment agency claiming religion discrimination in violation of Title VII. The plaintiff alleged that the defendant denied her promotions because she was not a member of a religious group that the other employees belong to. The plaintiff further alleged that in a period of four years there were five management positions for which she was qualified and that four of those positions went to members of that religious affiliation. The defendant denied the allegations and claimed that the fellowship was not a religion, but a philosophical group and that the plaintiff was not a good choice to boost morale within the software group. The jury awarded the employee $647,174 in emotional distress damages, and $5,900,000 in punitive damages. Noyes v. Kelly Services, Case No. 2:02-cv-02685 (E.D. Cal. April 2008). Read the Ninth Circuit Court of Appeals decision that ordered the case to go to trial here.

Another case illustrates the circumstances under which an employer may limit an employee's practice of her religion at work. A student intern at at the Department of Children and Family Services handed out religious literature during her internship hours at the Department and shared her religious views with colleagues. After becoming concerned that the employee would not be able to separate her religious beliefs about homosexuality and abortion from her work with clients, the Department had the University to place plaintiff in a different internship at another agency. The jury agreed that the employer was right to have the intern placed in a different agency. Escobar v. Los Angeles County Department of Children and Family Services, Case No. CV060917 (C.D. Cal. April 10, 2007).

For further information on employer obligations with respect to religion, consult these sources:

1. Questions and Answers: Religious Discrimination in the Workplace (EEOC)
2. Best Practices for Eradicating Religious Discrimination in the Workplace (EEOC)
3. "Religion" portion of Case Analysis Manual (DFEH)