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Asthma and sensitivity to tobacco smoke and other pollutants are conditions that have been recognized by courts as a protected disability at workplace, entitling the workers suffering from those conditions to a reasonable accommodation.
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In County of Fresno v. Fair Employment & Housing Commission (1991), the employer (the county) argued that hypersensitivity to smoke is either a non-handicapping respiratory disorder, not covered by the California disability laws, or an “environmental limitation” rather than a physical limitation. The court has rejected both arguments, finding that because of the respiratory disorder, exposure to tobacco smoke produced by other employees substantially limited the Plaintiff’s ability to breathe, rendering the Plaintiff “handicapped” and covered by ADA (Americans with Disabilities Act) / FEHA (Fair Employment and Housing Act). In that case, the employer actually attempted to reasonably accommodate the plaintiff, and the following actions were taken: smokers used desktop air filtration machines, employees kept windows open, management separated Plaintiff’s desk from the desks of smokers, Plaintiff was offered an alternative position in another department, where smoking was not permitted. Because all of the above accommodations proved to be either futile or ineffective, the court still found that the employer failed to reasonably accommodate Plaintiff.

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One of the hallmarks and great advantages of California disability laws, which encompasses employers’ obligation to engage in interactive process to find reasonable accommodations to qualifying employees with a disability or a medical condition, is its flexibility. Generally, the employer must consider various solutions to accommodating an employee and be reasonable creative and considering different types of things that the company can do to help the disabled worker remain in the workforce.
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One of such accommodations, which can be particularly relevant in cases where an employee has a psychological/mental disability is working from home. In Humphrey v. Memorial Hospitals Association, the Ninth Circuit specifically noted that allowing an employee who suffered from OCD (obsessive compulsive disorder) to work from home can be one type of reasonable accommodation that should be considered if it may be effective and if performing that employee’s job duties from home would not impose undue hardship on the employer. In that case, the other fact that was helpful to plaintiff is demonstrating that some of her co-workers worked from home, while she was denied that accommodation, and that company had a policy of allowing employee to work from home.

Even though the employer argued that there was no guarantee that working from home would be an effective accommodation to claimant, the court was not persuaded, as one doctor’s testimony that working from home could have been effective was sufficient to trigger liability against the employer for failure to provide such an accommodation.

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One of the common mistakes claimants make is coming to the mediation with a set, firm “floor” settlement figure in their mind. This approach has seriously downside. First and foremost, mediation is a process that requires at least some compromise from both parties. Statistically, most cases that go to mediation settle, but it is also true that to be successful at mediation you have to take less than you were initially willing or give more than you initially wanted.

Being open minded about the settlement of your case during the mediation is particularly important in wrongful termination and other employment cases, as these are particularly challenging cases, in which liability is almost always an issue. Unlike in other cases, such as car accident, in which it’s typically clear and uncontested whose fault the accident is, and the only questions is how much the innocent victim should recover in damages, discrimination, retaliation, and other wrongful termination claims require proving motive. Direct evidence of illegal motive by the employer, such as open admission of guilt, is almost never available, and the aggrieved employee has to rely on circumstantial evidence to prove his/her case. In addition, the employer often have defenses that are hard to disprove, which include misconduct, insubordination and poor performance, which are inherently subjective and so easy for the employer to argue, unless you have a stellar, long-standing performance record.

The above and other factors all suggest that it is in your best interest to be open minded about the settlement value of your case at a mediation. It does not mean that you have to sell short a good case with compelling facts and reliable witnesses, but it does mean that you should listen carefully to the arguments of everyone else who shows up at mediation about the strengths and the weaknesses of your case, as all of the other present at the proceedings likely have much more experience in employment law and with trials and juries than you do.

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Having been regularly representing registered nurses, nursing assistants and medical assistants who work for major hospitals and other healthcare facilities in California, including such groups as Kaiser, Stanford Hospitals, and Sutter Health, I see the same patter of work related injuries over and over. A nurse or an assistant is lifting a patient or moving a heavy object, causing an injury to his/her wrist or back, which often requires time of work, prolonged treatment and even a surgery. Some of those wrist/arm and back problems never go away and force the nurses to switch their jobs altogether.

As simple and as obvious as it might sound, strengthening the major groups of muscles in your back and arms/wrists by regularly working out, and just as importantly – having a brief stretching and warm up routine for the muscles and joints you use the most at work can take you a long way toward preventing those injuries. If, for instance, tennis players take their warm-up of their arms, legs and back so seriously in order to prevent injuries associated with sudden weight or impact, so should nurses and their staff do. While strengthening muscles and 5 – 10 minute warm-up before the shift will not guarantee an injury-free career, these simple steps will likely significantly reduce the frequency and gravity of the symptoms associated with pushing, pulling and lifting heavy objects.

Preventing or minimizing a risk of injury might require a degree of diligence and discipline from you, but it is surely a better option than dealing with the pain resulting from those injuries, and disability issues at workplace that may arise as a result.

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Under CFRA (California Family Rights Act), an employer is generally required to grant an eligible employee’s request to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. CFRA or FMLA leave may be taken because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee. A “serious health condition” means “an illness, injury, impairment, or physical or mental condition” that involves either “inpatient care in a hospital, hospice, or residential health care facility” or “continuing treatment or continuing supervision by a health care provider.” (Gov. Code, § 12945.2(c)(8).)

Thus, for instance, such a common illness as diabetes qualifies as a “serious health condition” within the meaning of CFRA, because the definition includes any illness that involves “continuing treatment or continuing supervision by a health care provider” or a chronic serious health condition which requires periodic visits for treatment to a healthcare provider, which continues over an extended period of time and which may cause episodic rather than a continuing period of incapacity, such as asthma, diabetes, and epilepsy.

In Dudley v. Dept. of Transportation, 90 Cal.App.4th 255 (2001), the court made it clear that it is unlawful to fire or otherwise retaliate (demote, suspend, discipline, etc..) against an employee for exercising his right to FMLA / CFRA leave. Further, the court held, the fact that an employee exhausted his leave rights before being terminated does not necessary change the fact that the termination was considered workplace retaliation and thus unlawful.

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The recently published case, DFEH v Lyddan Law Group, decided by the agency that reviewing DFEH decision, reaffirms that fact that an employee is unlikely to prevail on a racial discrimination/harassment claim when his/her boss makes racial jokes, off-color comments with regard to different races in an apparent desire to entertain himself and his colleagues and staff members. As inappropriate and as offensive racist jokes at workplace might be, especially when they originate from a manager who is an attorney-partner in a San Francisco law firm, like it was in this case, these jokes do not mean that the alleged harasser discriminates or that he creates an hostile work environment, especially if the relationship between him and the alleged victim is otherwise good and if the alleged victim does not complain about the harassment and does not make it known in any way that he/she is unhappy about the comments she hears.
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Both, the Department of Fair Employment and Housing and the Court will require more than isolated racist jokes to find racial harassment or discrimination at workplace. Not all conduct at workplace that can be described as harassing creates liability under FEHA and the related anti-discrimination laws. As the Supreme Court has stated, the statutory protections against harassment do not create a “general civility code.” Oncale v. Sundowner Offshore Services (1998) 523 U.S. 75, 81. There has to be a showing that the employer created or failed to remedy objectively intolerable working conditions for the victim. The requisite standard involves a shoring that the harasser’s conduct would have interfered with a reasonable employee’s work performance, seriously affecting the psychological well-being of a reasonable employee and that the alleged victim was actually offended. As the court stated in Aguilar v. Avis Rent A Car System, Inc., (1999) 21 Cal.4th 121, 130, “not every utterance of a racial slur in the workplace violates the FEHA or Title VII.”

In this particular case, the DFEH also hinted in their decision that they also believe that at least one reason the employee brought a claim for racial discrimination against her boss was that she was denied her annual bonus and salary increase in a prior year.

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Like any other kind of employment discrimination, proving age discrimination at workplace is anything but easy. Some employees believe that being terminated at the age of over 40 means they have a wrongful termination claim based on age discrimination. While the termination itself if one factor that may point at age discrimination, if this were all that need to prove the age case, every person over 40 who was terminated would have had a discrimination claim. This would of course be an absurd.

age-discrimination-in-californiaIt is useful to know however what facts can be helpful in prosecuting a lawsuit for age discrimination. The First Appellate District provides a useful guidance in Stephens v. Coldwell Banker Commercial Group, Inc. 199 Cal.App.3d 1394 (1988). Like pretty much all other courts, the Stephens court began analyzing the jury’s verdict by noting that in most employment discrimination cases , direct evidence of the employer’s discriminatory intent is unavailable or difficult to dispute, and therefore an indirect method of proof is required. Thus, to establish the initial claim for age discrimination, the employee has the burden of proving that he was within a protected a class (over 40), that he was performing satisfactorily, and that he was terminated or demoted under circumstances which give rise to an inference of unlawful discrimination. Once the initial claim is shown, the employer has to produce evidence that plaintiff was demoted or terminated for legitimate, non-discriminatory reasons. Plaintiff then has an opportunity to prove that a discriminatory reason more likely motivated the employer or that the employer’s proffered explanation for termination or demotion is unworthy of belief in pre-textual as a cover-up for discrimination. As you can imagine, once an employee meets the initial burden, the employer will do its best to show that it had a legitimate reason for taking action against the employee. The most common proffered reasons for firing are misconduct, poor performance, insubordination or even reduction in force. It’s easier for employers to use poor performance as a justification for termination because it is such a subjective matter, where employer under the law have discretion in determining for themselves whether they are satisfied with the employee’s work. However, this doesn’t mean that all is lost for the victim of age discrimination. Just because the employer argues that the employee was a bad worker, doesn’t mean the employer wins the case.

There are several useful tools in the employee’s arsenal to rebut or make the poor performance argument less believable to the jury/judge. First, long tenure of service for the employer is a major element of showing that the employee was likely not terminated because of poof performance. After all, if plaintiff was such a bad worker, why did the employer keep him/her around for so many years. in Stephens, the plaintiff was employed with the defendant-employer for nearly 30 years before being terminated for “poor performance.” But, even a shorter, but still significant career length with the employer will cast doubt on why the employer kept a certain employee around if they were not happy about the quality of his work, especially if the employee has a documented past of good performance, such as promotions, awards, bonuses, positive performance reviews and alike.

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The protections afforded to employee under the Federal and State disability laws are quite expansive and go far beyond protecting just those employee who have a “disability” the way an ordinary person would understand the term, such as being handicapped, or having suffered from a major traumatic injury. The US Supreme Court case School of Board of Nassau County, Florida, v. Arline, 481 U.S. 1024 (1987) is an illustration of this broad application of the disability laws at workplace. In that case, a school teacher was fired from her job solely because of her susceptibility to tuberculosis. The school argued that in removing the teacher from her position, they were protecting the safety of others by preventing the teacher from infecting students and administration with the contagious effects of tuberculosis during a possible relapse. However, the Supreme Court was not persuaded, noting that allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of section 504 (Rehabilitation Act) which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or ignorance of others. The fact that some persons who have contagious disease may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence. Rather, they would be vulnerable to discrimination on the basis of mythology – precisely the type of injury Congress sought to prevent.

The Court further agreed American Medical Association that to determine whether the Plaintiff was otherwise qualified for her position, an individualized inquiry should have been made, which was to include “findings of fact, based on reasonable medical judgments given the state of medical knowledge about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious”, (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.”

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In Doe v Lincoln Unified School District, the Third District extensively discusses the rights of California certificated employees within California Education Section 44942, which provides a summary procedure for suspending or transferring to other duties a certificated school employee where there is reasonable cause to believe the employee “is suffering from mental illness of such a degree as to render him or her incompetent to perform his/her duties.” Upon suspension or transfer under the section, the governing board of the school district must provide the employee with “a written statement of the facts giving rise to the board’s belief, and an opportunity to appear before the board within 10 days to explain or refute the charges.” If, after such appearance, the board decides to continue the suspension, of if the employee does not appear, the employee is given an opportunity to be examined by a panel of three psychiatrists or psychologists selected by the employee from a list provided by the board.

teacher.jpgThe panel’s examination shall be at the school district’s expense and must take place within 15 days of the suspension or transfer. A written report must be submitted by the panel to the board within 10 days and shall contain a finding as to “whether the employee is suffering from mental illness of such a degree as to render him/her incompetent to perform his/her duties.” During this process, the employee shall continue to receive his regular salary and all other benefits of employment.

If the panel concludes the employee should be permitted to return to his prior duties, the board must reinstate the employee to his position and expunge from the employee’s personnel file all references to the suspension and the panel’s determination. If, on the other hand, the panel determines that employee is suffering from a mental illness sufficient to render him incompetent to perform his duties, the board may place the employee on mandatory sick lave for a period not to exceed two years.

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Few wrongful termination, harassment, and discrimination cases are “clear cut.” No matter how strong the evidence of unlawful conduct by the employer is in the hands of the aggrieved employee, the employer always has its own side to the story, which usually says “We did nothing wrong, and the plaintiff is lying.” No employment case is perfect, and every case has its strengths and weaknesses.
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One of the most important elements of any civil case, especially wrongful termination cases is maintaining your credibility as a claimant. Being credible usually means relying on facts rather than on unsupported beliefs and speculation, not lying and not exaggerating. The less commonly mentioned by equally important element of credibility, which plays a crucial role during your testimony is accepting responsibility for something that you have done wrong while working for the employer-defendant. Here is a classic example: suppose you were an outstanding employee with numerous awards for your performance and promotions, but like everyone else – you were not perfect, and a few suggestions were made to you as to how you could improve your performance throughout your tenure with the company. The employer’s attorney chooses to focus on that specific issue during your testimony at the deposition or at trial, going over and over something relatively insignificant and belaboring the issue in part in order to destabilize your emotionally. It is very important that instead of getting angry and defensive, or justifying the common deficiencies in your performance, you accept at least some responsibility and admit that certainly things could have been done better by you. This will allow you to impress both the attorney, the judge and the jury, and send a strong message that not only you are a level-headed rational individual, but you are also responsible, recognize your mistakes when you make them and you deserve even more sympathy than you otherwise would.

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