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  • Mom hugging child

    Update 9/4/16: On August 29, 2016, the Court of Appeal issued an opinion on rehearing that retreated from its prior holding that the FEHA creates a duty to provide reasonable accommodations to an applicant or employee who is associated with a disabled person. However, the opinion still holds that the trial court erred in granting summary judgment to the defendant on the plaintiff’s claims for associational disability discrimination, failure to prevent discrimination, retaliation, and wrongful termination in violation of public policy. The court indicated that, given that the plaintiff has abandoned his failure to accommodate cause of action, it would not decide the point. It noted, however, that “when section 12940, subdivision (m) requires employers to reasonably accommodate ‘the known physical … disability of an applicant or employee,’ read in conjunction with other relevant provisions, subdivision (m) may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person.” Because the cause of action was abandoned, “[w]e only observe that the accommodation issue is not settled and that it appears significantly intertwined with the statutory prohibition against disability discrimination. . . .” I leave the below analysis as a discussion of what could have been a dramatic expansion of rights for California workers who care for disabled relatives, reflecting an issue that continues to remain undecided for now.

    A new case—Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 246 Cal.App.4th 180—dramatically expands the rights of California employees who care for disabled relatives. It holds that the California Fair Employment and Housing Act (FEHA) creates a duty for employers to provide reasonable accommodations to an employee who is associated with a disabled person.

    Background

    Employees with disabilities have long been protected in the workplace, including by the FEHA and by the Americans with Disabilities Act (ADA). They are protected from discrimination, retaliation, and harassment based on their disabilities. In addition, employers must take affirmative steps to accommodate them to enable them to work. If a qualified employee with a disability requests a reasonable accommodation, the employer must provide it unless it “can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” There are many types of reasonable accommodations, such as job restructuring and changes to job duties, modified schedules, reassignments, use of specialized equipment, and medical leave.

    Employees have also been protected from discrimination based on their relationship or association with a person with a known disability. This includes discrimination based on unfounded fears and stigmas (for example, against someone whose partner has HIV) and discrimination based on assumptions that employees might not be as available because of their caregiving obligations (for example, against a parent whose child has special needs).

    However, until recently, employers’ obligations to provide workplace accommodations to people who care for those with disabilities were limited.

  • podium

    On May 7, 2016, Ramit Mizrahi will be speaking about the top discovery issues in employment law. The panel, titled “Here we go again! Common discovery issues with no easy answers,” will be part of the Los Angeles County Bar Association Labor & Employment Annual Retreat & Section Meeting.

    Date and time: May 7, 2016, 11:30 a.m.

    Location: Omni Rancho Las Palmas Resort & Spa, 41000 Bob Hope Drive, Rancho Mirage, California 92270

    Additional information can be found on the LACBA website.

  • Superhero Girl

    Women earn an average of 79 cents per dollar as compared to their male peers. At that rate, a woman would have to work from January 1, 2015 to today (April 12, 2016) to earn the same amount as her male peer did in 2015!

    Equal Pay Day is an opportunity to reflect on the reasons why women still earn less on average than their male peers — and the remedies available to us.

    There are many factors that cause women to earn less than their male peers, including sex segregation at work, implicit biases, and penalties that women pay for caregiving.

    Fortunately, we are making inroads toward addressing these issues. The Fair Pay Act will hopefully make a tremendous difference in California, as employers are now required to justify any pay disparities between men and women doing comparable work. I expect that as employers scrutinize their pay practices, they will put into place objective criteria that ensure that workers are paid fairly, and will provide equity adjustments to female workers who are underpaid relative to their male peers without justification. The EEOC’s proposal to collect pay data would also shine a light on employers’ pay practices to ensure that there are not unjustifiable disparities in pay among the various protected classes of people.

    Other exciting changes are afoot, including moves toward expanding paid leave to workers in San Francisco and New York. As more mothers and fathers have access to paid leave (and are encouraged to take it), women will be less likely to be penalized at work for taking time off for caregiving work (and men will have greater freedom to take leave).

    Also exciting is the move toward a $15 minimum wage in California.

    While Equal Pay Day is generally not a “happy” day, there is much to be happy about this year!

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