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  • 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.

    Background

    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.”

  • signing an employment contract

    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

    This month, Governor brown signed a bill by Senator Bob Wieckowski (D-Fremont)—SB 1241—that creates a new section of the Labor Code:

  • Students sitting with teacher

    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 . . .

  • Little girl visits her father before surgery

    Five years in the making, the EEOC has finally released its guidance on leave as a reasonable accommodation. It reaffirms employers’ obligations and provides clarity where it was sorely needed.

    Background

    When employees need medical leave, they will often request time off under the Family and Medical Leave Act (FMLA) (or, in California, the California Family Rights Act (CFRA)). But what many employees—and some employers—don’t know is that laws other than FMLA and CFRA may require employers to provide medical leave, including the Americans with Disabilities Act of 1990 (ADA) and California’s Fair Employment and Housing Act (FEHA).

    Under the ADA and FEHA, employees may be entitled to medical leave for disability-related issues:

    • Even if they work for small employers that are not covered by the FMLA/CFRA;
    • Even if they are not eligible for FMLA/CFRA (for example, if they have not worked for the employer for at least a year or has not worked 1250 hours); and
    • Even if they have already exhausted their 12-weeks of FMLA/CFRA leave.

    In June 2011, the EEOC held a meeting to discuss the issue of leave as a reasonable accommodation under the Americans with Disabilities Act. The invited speakers unanimously agreed that both employees and management would benefit from clear and uniform guidance on the subject. While the guidance was forthcoming, I published an article titled Leave As A Reasonable Accommodation Under The Americans With Disabilities Act, which explored various issues that keep coming up in this context. The EEOC’s guidance confirms that employers must be mindful of their obligations to accommodate disabled employees, including by providing unpaid leave. Note, too, the California employees may be. . .

  • Applause

    Mizrahi Law is pleased to announce that founder Ramit Mizrahi has once again been selected for two highly prestigious lists:

    • Super Lawyers® Up-and-Coming 100: Southern California Rising Stars 2016, and
    • Super Lawyers® Up-and-Coming 50: Women Southern California Rising Stars 2016.

    Top 100

    This is the second year that Super Lawyers has identified its most highly rated Rising Stars on top 50 and top 100 lists.

    This also marks the fourth year that Ramit Mizrahi was selected a Super Lawyers® Southern California Rising Star. Only the top 2.5% of eligible attorneys in Southern California are selected as Super Lawyers Rising Stars, reflecting peer recognition of excellence in practice.

    Ms. Mizrahi’s selection as one of the top 100 Rising Stars and top 50 Rising Stars women–already a highly select group of attorneys–reflects that she is highly respected among her peers and is one of the top-rated attorneys in Southern California.

    Ms. Mizrahi remains committed to serving as a tenacious advocate for her clients while working to build collegiality and community in the legal profession.

  • 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!

  • podium
    Registration is now open for the State Bar of California’s 33rd Labor & Employment Law Annual Meeting, which will be held at the beautiful Claremont Club & Spa in Berkeley, CA on April 21, 2016. It will be followed by the 22nd Annual Public Sector Conference on April 22, 2016. (You can register for one or both days.)

    Ramit Mizrahi is honored to be both the Co-Chair and a sponsor of the Annual Meeting, which promises to bring together several hundred of the top California labor and employment lawyers for an excellent educational and networking event. Highlights of the Annual Meeting will include:

    • A keynote address by the Hon. Brad Seligman, Superior Court of Alameda County;
    • A review of the year’s most significant employment cases;
    • A plenary session with Stanford Law Professor Deborah Rhode on The Trouble with Lawyers (and how we can improve satisfaction in the legal profession);
    • A plenary session on trial opening statements, presented by two top trial lawyers;
    • Concurrent panels covering the following topics: the newest developments in wage and hour law, accommodating mental disabilities in the workplace, the evolving role of NLRB in today’s workplace, ethical issues in employment litigation, comparative law, and workplace retaliation;
    • An evening networking reception;
    • And much more!

    Thursday-Friday, April 21-22, 2016
    Claremont Club and Spa
    1 Tunnel Road, Berkeley, CA


  • An estimated 0.3% of adults are transgender. Many face pervasive harassment, discrimination, violence, and abuse in every aspect of their lives, including at work, in housing, education, healthcare, and personal relationships. Consider the discrimination suffered by transgender individuals at work. According to a comprehensive 2011 report titled “Injustice At Every Turn: A Report of the National Transgender Discrimination Survey“:

    • 90% of transgender individuals surveyed reported experiencing harassment, mistreatment or discrimination on the job or took actions like hiding who they are to avoid it.
    • 47% said they had experienced an adverse job outcome, such as being fired, not hired or denied a promotion because of being transgender or gender non-conforming.
    • Over one-quarter (26%) reported that they had lost a job due to being transgender or gender non-conforming and 50% were harassed.
    • Large majorities attempted to avoid discrimination by hiding their gender or gender transition (71%) or delaying their gender transition (57%).
    • Overall, 16% said they had been compelled to work in the underground economy for income (such as doing sex work or selling drugs).
    • Respondents who had lost a job due to bias also experienced ruinous consequences such as four times the rate of homelessness, 70% more current drinking or misuse of drugs to cope with mistreatment, 85% more incarceration, more than double the rate working in the underground economy, and more than double the HIV infection rate, compared to those who did not lose a job due to bias.
    • A staggering 41% of respondents reported attempting suicide compared to 1.6% of the general population, with rates rising for those who lost a job due to bias (55%), were harassed/bullied in school (51%), had low household income, or were the victim of physical assault (61%) or sexual assault (64%).

    California has protected transgender employees from workplace and housing discrimination since before 2003. It has done so through the Fair Employment and Housing Act (FEHA), which prohibits discrimination, harassment, and retaliation based on certain protected categories. However, many Californians remain unaware that transgender employees are protected from workplace discrimination. To help educate workers and employers, the California Legislature made these protections explicit in 2003 and 2011. And, this week, California’s Department of Fair Employment and Housing issued guidance . . .

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