In any California business with 5 or more employees, the law entitles a pregnant woman to accommodation based on her pregnancy or related conditions.  Still, many women feel the effects of discrimination.  The effects fall into several main categories including refusal to hire a pregnant applicant, firing or demoting a pregnant employee, denying the same or a similar job to a pregnant employee when she returns from a pregnancy-related leave, and treating a pregnant employee differently than other temporarily disabled employees.

Pregnant California residents have the right to reasonable accommodations (for example, changing break schedules to allow for more bathroom visits or transferring the employee to a less strenuous or dangerous position during pregnancy).  With medical certification of the employee’s doctor, employers must accommodate a request for accommodation to the best of their ability.  When the doctor says that the accommodation is no longer medically needed, the employee also has the right to her old job back.

If you feel that you have been discriminated against based on pregnancy, you should contact an attorney today.

Under FEHA, a physical disability is one that limits a major life activity.  And, there are actually state regulations describing major life activities:  functions such as “caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” This state definition of physical disability differs from similar federal law in a significant way. Federal law requires that a disability “substantially limit” a major life activity.  California law only requires that the major life activity be limited. Thus, it is far less likely in California that there will be a question of fact about whether an employee is, in fact, disabled under FEHA.  For example, a California court of appeal recently held that an employee who needs the assistance of a cane to walk is disabled for the purpose of a FEHA disability discrimination claim—even if the employee could perform work at normal capacity.   (See Sandell v. Taylor-Listug Inc., California Courts of Appeal, 4th District, Case No. D055549, Sept. 7, 2010.)  In short, if an employee walks with the assistance of a cane or has a mild speech impediment, she meets her first burden in a disability discrimination claim—establishing that she suffers from a disability.  Again, the import for California employers (and employment law practitioners) is that California and federal laws diverge on what it means to be “disabled” for the purpose of a discrimination claim, with California’s definition being more inclusive.

Humboldt County employers know that having an written sexual harassment policy is a critical practice.  The United States Court of Appeals for the Ninth Circuit recently released an opinion that reads like a cautionary tale about excellently-written sexual harassment policies that don’t get enforced.  (See EEOC v. Prospect Airport Services, Inc., 2010 DJDAR 14107, Sept. 3, 2010.)  The employer had a written sexual harassment policy, signed by employees, that encouraged employees to report sexual harassment to their immediate supervisor and promised that the employer would “investigate each complaint in a prompt and proper fashion.”  In this particular instance, a male employee reported sexual harassment by a female employee to three different supervisors in the chain, saying that he just wanted the harassment to stop.  The last  supervisor to receive the complaint responded that he didn’t want to get involved in a personal matter, and spoke to the offending employee once about her behavior.  After approximately five month of harassment, even subsequent to the supervisor counseling the offending employee, the employer terminated the male employee, basically for his bad attitude.  His complaint against the employer has now been litigated before a United States District Court of Appeal—an expensive proposition for any employer.

In short, employers must enforce their sexual harassment policies, or they face credible complaints of harassment.

Humboldt County employees now have broader protection against retaliatory firings thanks to a recent decision by the United States Supreme Court.  On January 24, 2011, the Supreme Court of the United States issued an 8-0 decision in the case of  Thompson v. North American Stainless.  This decision held that Title VII of the Civil Rights Act of 1964 (“Title VII”) extends to third parties in certain circumstances.  In summary, an employee was terminated because another employee filed a sexual discrimination suit with the EEOC. The employee who was terminated was engaged to the employee who filed the sexual discrimination suit.  The Court held that the purpose of Title VII is to provide broad protection  against discrimination to employees.  The Court went on to state that this protection extended to third parties who were retaliated against in an effort to injure the party complaining of discrimination.  Writing for the majority, Justice Scalia stated that Title VII’s anti-retaliation provision extends to anyone within the “zone of interest” that the statute seeks to protect.

The Supreme Court reasoned that Title VII’s anti-retaliation provisions were intended to protect against any employer action that may dissuade a reasonable worker from making or supporting a charge of discrimination.  It was “obvious” that a worker might be dissuaded from making or supporting a complaint of discrimination if he or she knew that her fiancé might be terminated.  Hurting the fiancé was the means by which the employer intended to harm the woman making the complaint of discrimination.  The Court warned that retaliation against a mere acquaintance would not meet this standard but did not define which specific relationships would qualify.  It held that outside of close family relationships it would depend on the circumstances of each case to determine whether the plaintiff was in the “zone of interest.”

The bottom line is that employers should be aware that if they retaliate against employees or persons close to them because the employee made a complaint, the employer is subject to a lawsuit under Title VII.  If you have questions about the effects of this case on your particular situation, please feel free to consult with a Janssen Law Firm employment lawyer.

The DFEH recently announced that it has settled a disability discrimination case against a Northern California medical group.  The former employee of the medical group, a nurse, alleged that the group refused to accommodate  her disability, as the result of on-the-job injuries to her hands and shoulders, and then wrongfully terminated her because of the disability.  According to the DFEH press release, the medical group accommodated the employee’s disability at first, but then placed the employee on a permanent leave of absence after the employee had shoulder surgery.  The medical group’s settlement requires the group to reinstate the nurse, pay her $210,000 in lost wages and emotional pain and suffering, and provide disability discrimination prevention training to its managers and supervisors.

The Janssen Law Firm is experienced in and can advise you on the handling of employee disability issues.

The California Legislature can—and does—prescribe different statutes of limitations for different claims.  In the Labor Code, there is a complicated interplay between statutes of limitations for unpaid wages (typically three years) and those solely for the purposes of receiving penalties (generally one year).  In some instances, employees choose to file actions only claiming Section 203 penalties from a former employer (as opposed to unpaid wages and penalties).   The question is whether the one year or three-year statute of limitations controls such a claim.

In Pineda v. Bank of America (2010 DJDAR 17449), the California Supreme Court settled the question.  The three-year statute of limitations applies when employees make claims only for Section 203 penalties.

As a practical matter, the Court’s opinion shouldn’t change any practices for Humboldt County employers.  Under state and federal laws, employers already keep payroll records for four years and wage records for at least three years.  It may be that the better practice is to retain wage records for at least as long as you retain payroll records—just to be sure you have documentation for those former employees who file claims at the very end of the three-year statute of limitations.   As always, a good defense begins with good documentation.