30 Sep '16
Most people know that employers are required to provide reasonable accommodations to employees with disabilities. But they are also required to accommodate those whom they perceive or regard as disabled. A new California case, Moore v. Regents of the Univ. of California, 248 Cal.App.4th 216 (2016) affirms these obligations and has terrific language with respect to employee accommodation and leave rights.
Deborah Moore worked as UCSD’s Director of Marketing. In mid-2010, a new person took over as her supervisor and sought to restructure the department. A couple of months later, Moore was diagnosed with idiopathic cardiomyopathy, a condition affecting the heart muscles that can lead to heart failure. Her doctor ordered her to wear a heart monitor and external defibrillator for several weeks. Moore told her supervisor about her heart condition and needs, and assured the supervisor that “there was nothing to worry about, that it would take care of itself” and that she would be able to do her job, “no problem.” Her supervisor, however, was concerned—unilaterally deciding to “lighten [Moore’s] load to get rid of some of the stress.” The supervisor asked HR what to do in the case of a medical event and admitted that she asked how to handle Moore as a liability. After that, the relationship between Moore and her supervisor soured, with Moore believing that the supervisor was unfairly criticizing her, yelling at her, taking away her duties, and demoting her because of her heart condition. Some time later, Moore advised that she would need some time off to get a pacemaker put in. The supervisor then eliminated Moore’s position and terminated her—even though Moore had more seniority than a colleague of hers and that this was a violation of policy. In the following six-month period, new employees were hired, including for roles that Moore was well-qualified to perform.
Moore’s Complaint and History of Her Case
Moore sued, alleging causes of action under the Fair Employment and Housing Act (FEHA) for disability discrimination, failure to accommodate, failure to engage in the interactive process, and retaliation, as well as causes of action for interference and retaliation under the California Family Rights Act (CFRA). Note that Moore’s disability causes of action were based on perceived disability, rather than actual disability.
The Regents moved for summary judgment, which the trial court granted. Moore appealed.
The Court of Appeal’s Decision
The Court of Appeal held that summary judgment was improperly granted with respect to all but one of Moore’s causes of action. In doing so, the court followed the holding of Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34 (2006), which holds that employers have an obligation to provide reasonable accommodations and engage in the interactive process with those that they regard as disabled. It quoted the rationale laid out in Gelfo:
“An employer who in unable or unwilling to shed his or her stereotypic assumptions based on a faulty or prejudiced perception of an employees abilities must be prepared to accommodate the artificial limitations created by his or her own faulty perceptions.”
27 Sep '16
California workers have yet another reason to rejoice. This month, Governor Brown signed into law a bill that prohibits choice of law and choice of forum provisions in employment contracts.
Why is this law so important?
California has some of the strongest employee protections in the nation. However, some employers have sought to strip away these protections and to deter employees from asserting legal claims through the use of choice of law and choice of forum provisions. These provisions are often buried in arbitration agreements that are presented to employees or job applicants on a “take it or leave it” basis.
A choice of law provision is a term in a contract or agreement that requires that any dispute be governed by the laws of a particular jurisdiction. For example, if a California employee’s employment contract or arbitration agreement has a choice of law provision stating that the contract will be governed by Texas law, Texas law will likely trump California law for claims brought under the contract—even if this reduces or limits the employee’s claims or recovery. Choice of law provisions can make it difficult for employees to even understand their legal rights, as they are likely unfamiliar with the out-of-state laws that would apply to their claims.
A choice of forum provision determines where an employee can assert his or her claim. For example, if there is a choice of forum provision in an employment agreement that requires arbitration in Delaware, that would prevent an employee from being able to file a lawsuit in a California court. Instead, the employee would be forced to pursue their case in arbitration in Delaware. Such a provision serves to deter an employee from bringing forward legal claims because the employee would need to find a lawyer to take on the case in another state, would likely be unfamiliar with the out-of-state forum, would need to travel to the forum, and would have a case that is far more expensive to litigate because the witnesses are not in the same place as the forum.
New Labor Code section 925
14 Sep '16
Vergara v. State of California, No. B258589, 2016 WL 4443590 (Cal. Ct. App. Aug. 22, 2016)
Nine California public school students sued the State of California and state officials alleging that portions of the California Education Code that govern teacher tenure, dismissals, and layoffs were unconstitutional and denied them equal protection. Over the course of an eight-week trial, the evidence reflected a number of significant problems: Tenure decisions were required to be made so quickly (within two years) that principals had only about 16 months to begin making their reelection decisions—far too little time to adequately assess performance. Dismissals of teachers were so expensive and time-consuming that in a ten-year span only two teachers per year on average out of a total K-12 teacher population of 277,000 were dismissed. “Last in, first out” rules regarding layoffs required that teachers be let go in reverse order of seniority, such that effective teachers were laid off before ineffective ones with more seniority. Extensive evidence was presented about how administrators engaged in a “dance of the lemons”—shuffling grossly ineffective teachers around from school to school, with them often landing in schools serving poor and minority students.
After the trial, the trial court issued a ruling declaring five sections of the Education Code unconstitutional. The court found that competent teachers are a critical component of a child’s success in their educational experience, and that grossly ineffective teachers undermine a child’s success. The court determined that the evidence at trial was compelling and “shocks the conscience.” The court concluded that the challenged policies were unconstitutional, determining that substantial evidence showed that they disproportionately affected poor and/or minority students. Defendants appealed.
The Court of Appeal Upheld the Laws
The Court of Appeal reversed, holding that the statutes did not inevitably cause low-income and minority students to be disproportionately assigned to grossly ineffective teachers in violation of equal protection, nor was there an identifiable class under equal protection analysis for the “unlucky subset” of students in the general population assigned to grossly ineffective teachers. As the court reasoned . . .
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