In a recent, very interesting employment discrimination case holding - Castro Ramirez v Dependable Highway Express, Inc. (2016), the Second Appellate District clarified the employers' obligation to provide reasonable accommodations to employees in the associational disability context - i.e. where the employee who is not disabled is seeking an accommodation for a physical disability of another person with whom he is "associated" as per California Gov. Code section 12926. The court noted that an association with a psychically disabled person is itself a disability under the California FEHA.
Thus, when Gov Code section 12940(m) says that employers must reasonably accommodate "the known physical... disability of an applicant or employee," the disability that employers must accommodate include the employee's association with a physically disabled person. The court further pointed out that FEHA (Fair Employment and Housing Act) creates an associational disability discrimination claim by reading "association with a physically disabled person" into the Act where "physical disability" appears in section 12940(a).
Finally, the court pointed out that this is yet another way in which California FEHA provides a much broader anti-discrimination protection to employees than its federal counterpart - ADA. This law and clarification provides significant protection to employees who parents, children, or other closely associated persons/relatives are disabled and require some kind of significant attention from that employee.
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An employee who exercises his FMLA/CFRA or ADA/FEHA rights due to a qualifying disability or serious medical condition is considered to be in a "protected" class. This means that it is illegal for an employer to treat that employee differently because of his exercise the above workplace disability rights.
Being "protected" does not mean, however, that an employee is protected from any employment action and enjoys some kind of immunity because of his FMLA or ADA status. For instance, when a lay-off takes place, and employee who is on FMLA or ADA leave is subject to lay-off just like any other employee. It would only be illegal to choose an employee for lay-off because of his FMLA /ADA status.
The same applies to employment terminations. A disabled employee who engages in some kind of misconduct or violates an employer's policy can be lawfully terminated just like any other employee who never applied for FMLA leave or ADA/FEHA leave or other accommodations. Being in a "protected" class is not a shield against all harm. It's only a legal remedy against being treated differently because you are a member of that class.
Under ADA/FEHA Requiring an Employee to be 100% Recovered Before Allowing Him to Return to Work is Generally Illegal
Below is an example of a potentially illegal and discriminatory AWOL notice that one of our clients has received. This document alone shows how the employer is trying to disregard the rights of an employee to (additional) medical leave as an accommodation. The employer - state agency - unfairly leverages the language of the applicable AWOL provisions to terminate an employee who is potentially entitled to a number of rights and protections under ADA and FEHA.
Fresno Jury Awards $750,000 to a former Framers Insurance Employee in an Age Discrimination and Wrongful Termination Case
A Fresno recently awarded nearly $750,000 in damages to a former Farmers Insurance employee in an wrongful termination case based on age discrimination.
Both sides agree that plaintiff Warehime was hired to work in the Visalia office in January 2002. At the time, the company was going through a transition from paper files to electronic files. During the trial, Farmers' attorney told the jury that Warehime never embraced the new technology and rejected training to become a better employee. When workload backed up on her, he said Warehime "blamed others for her problems."
The employer's attorney further said Farmers had good reason to terminate Warehime: she was low-balling customers on their claims, which led to costly litigation for the company.
Toole, Warehime's attorney, showed the jury evidence that Warehime had been a valued Farmers employee: she did the training requested by Farmers and the company honored her with awards and good to outstanding job-performance ratings each year from 2002 to 2005. "She was a committed team player and good with customer service," he told the jury. Toole said the climate began to change in the summer of 2003 when Warehime learned that one of her Fresno supervisors "wanted to hire his own people." Warehime was given higher caseloads than other employees, and when an employee left the company, she was given those files, too, Toole said. She asked her supervisor to balance the workload, "but nothing happened. No files were reassigned and she continued to drown in these files," Toole told the jury.
Things got worse for her, Toole said, because the Fresno office was filled with young, hip employees, Toole said. Warehime started hearing thing like: "I don't want to work when I'm your age" and "The old fuddy-duddy is coming in." In October 2005, Plaintiff complained to her supervisor that an evaluation of her work was inaccurate and unfair. The supervisor responded by telling her to improve her performance.
The stress became so intense, Warehime suffered a mental breakdown in February 2006, forcing her to take a leave of absence while her doctor treated her from depression and anxiety. Warehime's doctor cleared her to return to work on June 12, 2006. But when she showed up to work, a young man was sitting at her desk, and Plaintiff soon found out that she was fired.
This case involves a common combination of age discrimination and disability discrimination / failure to honor medical leave to which an employee is entitled under ADA/FEHA or FMLA.
Below is an example of an actual medical note which is likely insufficient in order to put the employer on proper notice of you need for medical leave under FMLA, CFRA, ADA or FEHA. There are two main issues with this medical note:
First, even though it states that the employee has "several medical condition", it doesn't identify any such conditions. It would be helpful to the employer if the doctor who wrote this note was a little more specific about the nature of his patient's condition and the resulting limitations.
The second issue that it doesn't firmly excuse the employee from work for certain dates. "... prevent her from appearing" is not the same as "unable to report to work between (date) and (date).
You should not hesitate to review or have an attorney review the medical note you receive from your doctor, which you plan to transmit to your employer in order to have your medical leave approved, in order to make sure that it is sufficiently specific and complete.
One common scenario where AWOL (Absent Without Leave) rules and an employee's FEHA/ADA disability rights collide and conflict is state agencies and other employers that have set and rigid AWOL policies that they apply to everyone universally. The two common problems with such policies repeat themselves over and over in many wrongful termination claims, and these bad policies can work to an employee's advantage in proving their case in court:
* Rigid, uniform AWOL policies that are applied the same way to all employees. Even though it sounds fair to apply the same leave policy to all employees, it goes completely against the very essence of ADA and FEHA disability laws, which call for an individualized assessment of a qualifying disabled employee's disabilities, restrictions, and limitations. Indidivually evaluating a disabled employee's needs is a cornerstone of the "interactive process" in which the employer is required to engage in with a disabled employee.
* The language of the AWOL government code statute and other AWOL related statutes makes granting leave discretionary. The AWOL rules typically say that an employee who is out for a certain number of consecutive days without "approved" leave may be deemed AWOL resigned. The problem is that whether that leave is approved is completely up to the management. A manager may decide not to approve a disabled worker's medical leave for whatever reason, even though all the necessary medical documentation to support the requsted medical or disability leave has been provided.
The above two issues open a lot of doors for some employees, and especially state and county employees, terminated due to being AWOL, to legally attack their termination in court through a wrongful termination and/or disability discrimination lawsuit.
Employees of California State agencies and some other public employees have certain appeal rights with regard to a disciplinary action or employment termination they might facing, which includes a hearing in front of the SPB board. This kind of hearing has four distinct advantages over bringing a lawsuit in court over the same issue/termination. First, the SPB hearing process is much quicker. You don't have to go through discovery, be deposed, wait for trial date and face a number of other phases in litigation that can easily make the process last well over a year. You are likely to have your full evidentially hearing in front of the SPB within just a few months or even sooner. Secondly, the SPB administrative law judge, beyond awarding backpay, can also order your reinstatement, if you were terminated. On the other hand, reinstatement is not a remedy that's generally avilable in court. You may be awarded damages for lost wages and emotional distress in court, but no judge or jury can force your employer to take you back to work. Further, the SPB hearings are free of charge, while litigation can be costly, although it depends on the nature of your case and the arrangement you have with your attorney. Finally, unlike in court, where the burden of proving the case is at all times on the aggrieved employees, at the SPB hearings the burden of proof is generally on the employer (except AWOL cases and a limited number of other exceptions).
The SPB hearings also have major disadvantages: if you have a strong discrimination case and you lose your SPB hearing for whatever reason, that decision will be binding on any subsequent discrimination lawsuit, unless you set aside the adverse SPB decision through Writ of Mandate - a process which will significantly delay going straight to court and filing a discrimination lawsuit.
So, when should you appeal your termination through SPB first and when is it better to skip the SPB hearing and file a lawsuit in court? While there is no clear cut answer or a definitive rule to always know what's the best way to handle your situation, the following "classic" examples should provide you with a useful guideline:
* If your discipline or termination is not based on unlawful discrimination based on a protected classes, and it involves whether you were terminated for just case, or whether your termination was imposed fairly, then you should definitely appeal your dismissal through SPB, because you probably don't have a basis to sue in court anyway. You will have all the more reasons to to trough the SPB process is you are interested in keeping your job and being reinstated. The more witnesses you have that will support your side of the story, the more chances you have to prevail at the SPB hearing.
* If, on the other hand, you believe you have a strong discrimination case based on disability, race, etc... and especially if your termination involves a more complicated ADA issue, such as failure to provide reasonable accommodations, retaliation for asserting disability rights, etc.., you are better off skipping the SPB process and not risking forfeiting your rights to sue for wrongful termination based on discrimination in court becasue of the adverse SPB ruling.
For more information on public employee rights in California, please visit our Sacramento Labor and Employment Law Blog.