Employment Discrimination

No matter which part of the political spectrum you might find yourself on, whether it be the far left, the alt right, or somewhere in between, this past weekend certainly provides some food for thought applicable to California employers.

Gender equality word cloud
Copyright: arloo / 123RF Stock Photo

The country, and many workplaces, have become increasingly polarized.  Yet many people are craving inclusion and a sense of hope.  Employees want to be valued, appreciated and heard.  Supporters of the new administration certainly voiced a sense of hope that things might change, and that those left behind by a growing economy will see some actions to address their concerns.  The hundreds of thousands of people who marched in various cities across the county, including a reported 750,000 here in Los Angeles, also voiced a need for a sense of inclusion with other like-minded individuals, even if those people may have different views on specific issues.

While discussions about politics in the workplace can be divisive and are universally not recommended, discussions about inclusion are important.  That inclusion can be based on sex, race, sexual orientation, religion, disability or any other category protected by law.  In fact, the law here in California has granted protections to individuals in workplaces who raise concerns about pay equity, discrimination, harassment, and retaliation for raising concerns about any such issues.  So open discussions in the workplace should be welcomed.

Many people are wondering what they can do to make a difference.  On that issue, and as it relates to inclusion in the workplace, here are a few suggestions (several adapted from the Father of a Daughter Initiative):

  • When someone at work opens up to you about an issue they believe is unfair, hear them out and resist the urge to be defensive.  You don’t need to agree, but you can certainly listen and try to understand their point of view.
  • Act to correct issues of bias or micro-inequities you may witness or hear about.  This can be as simple as repeating and emphasizing what someone with less power says at a meeting, while explicitly giving that person credit (“as Maria just said, I agree that we need to ….”).  This concept has been referred to as “shine theory” or “amplification.”
  • If you are in a position of power, make sure to look beyond your regular go-to personnel, and expand your net to someone you may not have considered for a special assignment or important role.
  • Be a visible advocate for those in your workplace less powerful than you are.

My hope, as Co-Chair of my firm’s Womens’ Initiative, is that this weekend’s momentum can be followed by many individual acts of inclusiveness at work.  Change starts with each one of us.  Let’s all be open to alternate points of view, make a difference in our own way, and strive to be a positive influence on those around us.

I have been waiting for a gap in my practice with no pending claims about a layoff gone wrong.  Honestly, I have been waiting for over two years, and there has been no gap, so I am taking the plunge and writing this blog post now.

Why are there so many claims involving layoffs?  Because employers consistently think that having a legitimate business reason for a layoff is enough to avoid and ultimately win a legal claim.  Well, sorry to be the bearer of bad news.  It isn’t enough to have a good reason (even if it is the real reason) — you have to be in a position to prove it.

So, how do you prove that your layoff is legitimate?  Here are some tips:

  • First, have someone vet the decision to test whether it passes the “smell test.”  That person can be Human Resources, internal legal counsel, or outside counsel, but someone really has to dig into the facts and make sure that the proposed business justification is legitimate.  And by the way, digging into the facts is not just asking the manager; it is making sure that the manager’s reasons are complete and all risk factors are appropriately identified and considered.  I often ask clients:  “What do you expect the employee to say when you inform her of the layoff?” and “How will you answer that question?”
  • Second, document the reasons for the decision at the time the decision is made.  This becomes very important when the decision makers have left the company and taken the thought process behind the business justifications along with them.
  • Third, make sure all layoff documentation clearly states the legitimate business reason.  No subterfuge here.  Don’t say one thing in the layoff meeting and something else on the separation notice for goodness sakes.  Have a script and make sure everyone sticks to it.
  • Fourth, while performance often weighs into a layoff decision, remember this is not a performance based termination.  So, if there is good reason for termination (such as consistent poor performance, policy violations, or bad behavior) document that behavior and call the separation what it is – a termination, not a layoff.  I have been known to say “a pig in a prom dress is still a pig.”
A pig in a prom dress is still a pig
Copyright: niknikpo / 123RF Stock Photo
  • Fifth, always (and I mean every time) show the individual a list of open positions at the company, and ask if they are qualified for and interested in any of them.  I don’t care if the positions are for janitorial in San Diego and the person laid off is a manager in San Francisco, show the list.  If they indicate interest, explore that option.  If they decline, document that the position list was provided and they declined.  If you don’t want to do this, then refer back to tip #4 (and this is probably not a layoff and should be a performance based termination).
  • Finally, be kind and empathetic.  It stinks to be laid off.  It hurts to have to leave the office without notice.  Treat the person laid off as you would want to be treated (or how you would want your closest family member to be treated).  Period.  No exceptions.

Employers who follow this six simple steps will be well positioned to defend a layoff claim.  If not, well, more business for us lawyers.

Adding to our earlier discussion of discrimination against monsters, here’s another post from Summer Associate Keith Yetter:

Apparently a small number of Americans identify as actual vampires! A recent Newsweek article profiles the work of DJ Williams, director of the social work program at Idaho State University, researching these Vampire-Americans.

Copyright: gator / 123RF Stock Photo
Copyright: gator / 123RF Stock Photo

In the ongoing evolution of individual identity rights, the article makes the predictable comparison between people who identify as vampires and the LGBT community. “The [discussion of individual rights] is prescient in a time when how one self-identifies is a topic of national conversation—from the Supreme Court ruling on gay marriage to Caitlyn Jenner’s coming out as a woman and appearing on the cover of Vanity Fair,” the article said.

In his dissent in Lawrence v. Texas, Justice Scalia famously argued that if the court was not prepared to uphold laws based on moral disapproval then “state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” would also have to be struck down.  Justice Scalia must have forgotten to include vampires, werewolves, and fairies.

Taking moral disapproval off the table, the state could make different arguments for having a rational basis to regulate vampirism. Public health concerns immediately spring to mind that might support laws regulating the transfer of blood in order to prevent disease. Or, perhaps, consenting adults should be left alone to live their lives as long as they do not impact anyone else.

A vampire rights movement sounds like something out of a fantasy novel and is unlikely to catch fire anytime soon. However, as our society moves beyond accepting moral disapproval as appropriate motivation for government action, we would do well to consider whether we might have more legitimate reasons for rejecting some “alternative lifestyles.”

It happens all of the time.  You hire someone and he or she just is not a good fit for your company.  Maybe you need a self starter and she needs a lot of direction.  Maybe you need high energy and he is lethargic.  Maybe you need upbeat and she is a complainer.  Maybe you had high expectations for the salary you agreed to pay, and he just isn’t meeting those expectations.  You don’t have a lot of performance documentation, either because he just started, or she isn’t that bad.  But it isn’t working. Employment is at-will.  You can terminate for any reason as long as it isn’t illegal, right?  You don’t have to explain yourself, right?  You just tell her the truth — she isn’t the right fit.

Well, I am here to tell you that telling someone that he or she isn’t the “right fit” is simply an invitation to get sued.  But why?

When you tell someone “you are not the right fit” they often interpret it as blaming, as if you are telling them there is something wrong with them.  It makes it about them, and not about you, and the company, and what skills are needed to effectively do the job.  It makes it feel very personal.  That makes people upset, and upset former employees find lawyers.

So next time you find yourself wanting to terminate someone and tell them “you are not the right fit,” think about a better way to convey the same concept.  Try to make it about you, not them.

  • “I have lost faith/confidence in your judgment.”
  • “I am not convinced you can do the job that we need.”
  • “This is not working for either one of us.”
  • “ I am not confident that we can work successfully together.”
  • “The company needs someone who is a real self starter and can work without direction, we have not found that to be the case with your approach to work.”
  • “We need someone who can drive results and lead the team, and your numbers are below expectations.”

Of course, it is always better to have specific performance documentation with examples of failure to meet clear expectations.  But in the absence of perfect evidence, at least try to avoid the “right fit” trap.

 

California discrimination laws protect a wide variety of individuals. So it’s perfectly understandable if you lay awake at night thinking about monsters and wondering whether employers are allowed to discriminate against them? Well finally, here are the answers to your questions about what types of monsters are protected from discrimination.

Zombies – Not protected. As I’ve previously explained, being dead is not a disability.

Werewolves – Not protected. While lycanthropy may be the type of impairment that otherwise qualifies as a disability, employers are not required to employ a creature who is “unable to perform his or her [or its] essential duties . . . in a manner that would not endanger . . . the health or safety of others even with reasonable accommodations.” And don’t think chaining employees up during full moons is a reasonable accommodation. Employers who chain employees to their work stations even figuratively face serious exposure to missed meal and rest period claims.

Werepanthers – Not protected. See werewolves.

Swamp Monsters – Don’t be ridiculous. I think we all know that swamp monsters aren’t real.

Ghosts – Not protected. See Zombies.

Vampires – Not protected. You can again rely on the exception for those who can’t perform their jobs without endangering the health or safety of others. If the job requires someone to work during daylight without burning up, you’re especially safe.

Aliens – Not protected. I’m not talking about those from other countries. I’m talking about those from other planets. You may not discriminate based on national origin. But you may discriminate based on planetary origin.

MutantsPROTECTED. Both California and federal law prohibit discrimination based on genetic information. So you may not discriminate against mutants.

So while most monsters aren’t protected against discrimination, mutants are. Happy Halloween!

Mutant Woman

Complying with the laws regarding disability discrimination remains one of the greatest challenges employers face. Lately, I’ve been discussing new California regulations on this topic (found in Title 2, Division 4, Chapter 2, Subchapter 9 of the California Code of Regulations). I’ve written about what gives rise to the obligation to engage in the interactive process and about what the interactive process requires.

The regulations also list the following examples of possible accommodations.

  • “[P]roviding accessible break rooms, restrooms, training rooms, or reserved parking places; acquiring or modifying furniture, equipment or devices; or making other similar adjustments.”
     
  • Allowing use of assistive animals. Note that we’re not just talking about seeing-eye dogs. The category includes everything from animals that provide emotional support to people with psychological problems to a miniature horse to pull a wheelchair
     
  • “Transferring an employee to a more accessible worksite.”

  • “Providing assistive aids and services such as qualified readers or interpreters to an applicant or employee.”

  • Job Restructuring (although the employer is not required to reassign essential job functions).

  • Part-time or modified work schedules.

  • Changing “when and/or how an essential function is performed.”

  • Adjusting or modifying “examinations, training materials or policies.”

  • Modifying policies or supervisory methods.

  • Providing additional training.

  • Letting the employee work from home.

  • Leaves of absence (although indefinite leaves are not required); and

  • Reassignment to a vacant position (although there is no need to create a position or disregard an established, bona fide seniority system).

Of course, what accommodations are appropriate for specific impairments will vary widely. But the list provides a useful checklist for employers who want to be sure they’re considering all the available options. Just as importantly, it can help employers document the steps they’ve taken.

If you missed last week’s presentation for the LA Hotels Human Resources Association, and want a little sampling of the employment law game you missed, let’s play!

In the Jeopardy-styled game, I give the answer and you respond with the question. Feel free to hum the show’s theme song in your head. The more points, the harder the question.

Employment Law Category: Religious Accommodation

For 100 the answer is: Scheduling and Dress & Grooming

  • The question? What are the most common types of religious accommodations requested?

For 200, the answer is: Interactive Process

  • The question? What is required of employers whenever an employee makes a religious accommodation request?

For 300, the answer is: Maintain Good Documentation

  • The question? What should every employer do to prove that it engaged in the interactive process?

For 400, the answer is: Essential Functions

  • The question? What do not need to be changed as part of a reasonable accommodation?

For 500, the answer is: To the Back of the House You Go

  • The question? What can a hospitality employer no longer say when someone requests a dress and grooming accommodation?

Of course there was a lot of discussion around these topics, but hopefully you get the idea. I think the attendees all agreed that it was a fun and interactive way to address the issues. Hope to see you next time!
 

In a prior post, I discussed what triggers the obligation to engage in the interactive process. Once that obligation arises, what is it employers are required to do?

According to California’s new disability regulations (specifically, 2 CCR sec. 7294.0), "Both the employer or other covered entity and the applicant, employee or the individual’s representative shall exchange essential information identified below without delay or obstruction of the process."

[Does the requirement to involve the applicant or employee’s representative mean they get to bring their lawyers? Probably not. "[O]rdinarily, a disabled employee may not require an employer to communicate directly with the employee’s attorney, because the interactive process contemplates that the employee and employer will communicate directly with each other to exchange information about job skills and job openings." Claudio v. Regents of University of California, 134 Cal.App.4th 224, 228 (2005).]

To fulfill its obligations, the employer must do one of the following:

  • Grant the applicant or employee’s requested accommodation.
     
  • Reject it "after due consideration" and initiate discussion of other possible accommodations. Rejecting an employee’s suggested accommodation without proposing a practical alternative constitutes failure to engage in the interactive process as a matter of law.
     
  • If the need for accommodation is not obvious, and the applicant or employee has not already provided "reasonable medical documentation confirming the existence of the disability and the need for accommodation," the employer can require him or her to do so.
     
  • If information provided by the applicant or employee needs clarification, then the employer can identify what is unclear, specify what further information is needed, and allow the individual a "reasonable time to produce the supplemental information."
     
  • When necessary to assess a requested accommodation or "to advance the interactive process," the employer can consult with experts.
  • If reassignment to a different position is being considered as an accommodation, the employer can request information concerning the applicant’s relevant education and work experience.

Once the necessary information has been exchanged, the employer must consult with the applicant or employee to identify potential accommodations and assess their effectiveness. While the employer must consider the individual’s preference, it has the right to decide which accommodation to implement.

After implementing an accommodation, an employer should follow up with the employee to ensure that the accommodation is effective. If it isn’t, the employer has to start this process over again. This is an ongoing obligation.

In most situations, an effective interactive process will require face to face discussions between the employer and the individual seeking accommodation. While those discussions should be informal, careful documentation is a "must." Under state or federal law, failure to engage in the interactive process is itself a statutory violation. So if litigation erupts over what caused a breakdown in the process, the employer will want to have records describing the steps it took.

Next we’ll look at some of the different types of accommodations.

 

A primary purpose of sexual harassment training is helping managers recognize and address inappropriate workplace behavior. A lot of time gets spent on what constitutes a sexually hostile work environment. Considerably less time gets spent on quid pro quo harassment. More importantly, the training frequently gets it wrong.

"Quid pro quo" means "this for that" in Latin. So most trainers will explain that it’s inappropriate for managers to condition job benefits on the employee providing sexual favors or making the rejection of a sexual advance the basis for an adverse employment decision. But in the real world, "quid pro quo" harassment doesn’t usually result from a manager’s calculated decision about how to bargain his or her authority for sexual favors. In the real world, it’s often the result of a man misperceiving whether a female subordinate is sexually interested.

Some psychologists think there’s an evolutionary basis for this. Carin Perilloux, a psychologist at Williams College, hypothesizes that overconfident men were more likely to "go for it" (my words, not hers) and therefore had more opportunities to pass on their genes. As a result, as reported in Discovery News, "men are more likely to walk away from an interaction with a woman thinking that she’s into him, while the woman thinks, ‘Well that was a nice friendly conversation.’"

This situation isn’t hard to imagine. A male supervisor is thinking about his interactions with his younger, female subordinate. He thinks about how pleasant she is towards him, how she appears to pay close attention to what he says and even laughs at the jokes that his wife tells him are stupid. He’s wondering, is it because he’s her boss and she has a powerful economic incentive to stay in his good graces? Or is it because she thinks he’s hot?

This is where men’s innate tendency to overestimate women’s interest comes into play. If he pursues a relationship and she rejects his advances, is he going to treat her the same? Because, even if it’s subconscious, if he becomes more critical of her work, less inclined to give her desirable assignments, or looks for ways to get her out of the organization, then that’s pretty blatant quid pro quo harassment. The motive was not a calculated effort to use his authority to get sexual favors. It was his mistaken belief that she would be receptive to his advances.

Training on quid pro quo harassment needs to help managers understand this dynamic. As a start, perhaps we should teach that "quid pro quo" is Latin for "No. I won’t sleep with you for a raise. You’re gross. Now leave so I can call my lawyer."

I’m incredibly proud that, in a survey of 150 law firms, The Recorder ranked Fox Rothschild #2 in California in terms of diversity. But that doesn’t mean that there isn’t much more that needs to be done.

For the past year, I’ve been heavily involved in the Bay Area Urban Debate League. BAUDL is part of a movement that seeks to establish and maintain competitive debate leagues in under-resourced public high schools, through which under-served youth are taught to research and advocate positions on complex policy issues. Its participants are overwhelmingly students of color (98%) and low income (66%). BAUDL currently serves 15 high schools locally, with about 450 student participants, principally in San Francisco and Oakland.

BAUDL helps kids develop communications skills and confidence. It gives them structure and discipline. It exposes them to positive role models. It increases their odds of academic success and progress (literacy scores, grade point averages and graduation rates all demonstrably increase for BAUDL participants). A disproportionately high percentage of BAUDL participants go on to college (88%, compared to barely half of their schools’ student populations). And more than half of the participants aspire to a career in the legal profession. BAUDL is thus successfully feeding the pipeline today with the diverse lawyers (and teachers, leaders, business people, etc.) of tomorrow.

Currently, BAUDL is in the midst of its Champions of Diversity Challenge, in which Fox Rothschild and 16 other law firms are competing to see who can raise the most (overall and per attorney). You can see the participating firms and the current standings here. If you’d like to donate, you can use that link to donate and have it credited to whichever of the competing firms you choose. If you’re a Bay Area law firm and want to get in on the act next year, please let me know.

I’ve met many of these young people and their stories are inspiring. The challenges they’ve survived and the strides they’ve made are amazing. You can read some of their stories here. One of our alums, Rashid Campbell (pictured below), is currently vying for the national debate championship and was just named 2nd out of the 288 top speakers in the country.

Please consider helping BAUDL to help these young people. They deserve a chance and BAUDL can provide it.