June 09 Labor & Employment Law Update 

Written by: Crystal M. O'Brien, Esq.

Employees Must Identify What Reasonable Accommodations Exist

In Scotch v. The Art Institute of California-Orange County, Inc., a May 6, 2009 opinion, Division III of the California Court of Appeal affirmed a decision in favor of the employer and upholding summary judgment where a disability discrimination claimant failed to identify what accommodation his employer was allegedly obligated to provide.  This decision suggests that courts will not provide damage awards merely because an employee claims their employer failed to engage in an interactive exchange where a disabling medical condition prevents an employee from fully performing his or her job.

In Scotch, an HIV-positive professor of an art institute was required as a condition of his employment to advance his education and obtain a master’s degree. Due to medications taken by the professor to maintain his health status and his propensity for becoming ill, he was unable to maintain a full-time teaching schedule, freelance, and enroll in a master’s program.  Thus he sought additional time or alternatively flexibility with requiring him to obtain a master’s degree.  His employer, however, refused to schedule him as a full-time instructor due to the professor’s apparent unwillingness to advance his education.  Thus the professor, forced to work part-time, without healthcare benefits, resigned his position.  Thereafter, the professor brought a constructive discharge claim alleging he was unlawfully subjected to Fair Employment and Housing Act (FEHA) violations prohibiting disability discrimination.  Under theories of disability discrimination, the professor also alleged the employer acted with knowledge of his HIV-positive status when it decided to adversely reduce him from full-time to part-time, failed to provide him with a reasonable accommodation to help him succeed despite his disability, and failed to engage in the interactive exchange process required by employers when on notice of a FEHA protected disability.

The trial court and Court of Appeal disagreed with the professor/plaintiff.  The Scotch court clarified that more is required of plaintiffs seeking recovery for violations of FEHA under disability discrimination theories. Plaintiffs need to assure their employers are on notice of a disability, initiate the interactive exchange process to clearly seek an accommodation that they can identify, with their employer’s participation, and when those efforts fail and result in an adverse employment action motivated primarily due to knowledge of the disability revealed through that process, then the road to damages recovery is paved. 

This decision is helpful in light of recent changes and amendments to federal and state disability laws.  To read the full decision, click here.

Harassment & The “Equal Opportunity Curser”

In an interesting Sixth Circuit Case from Ohio, Gallagher v. C.H. Robinson Worldwide, Inc., a federal appeals court considered application of the concept that a workplace that involves “guy’s locker room” cursing on a consistent basis and with everyone could not result in a hostile workplace to a single person subjectively offended by the conduct.  In Gallagher, a female employee subjected along with other females to pervasive and offensive derogatory cursing brought a claim against her employer for sexual harassment under theories of a hostile workplace. At trial, the employer prevailed against all claims by way of summary judgment. In short, the trial court held that the workplace was merely charged by cursing that was indiscriminate and directed at everyone. However, on appeal, the trial court was admonished for dismissing the plaintiff’s claims so briskly.  The fact that Gallagher and other women were specifically the target of the “locker room” work environment and that any woman standing in Gallagher’s shoes would likely take offense to the pervasive and severe cursing and that Gallagher, in particular, was impacted such that her ability to work in such an environment was reasonably interfered with so that she couldn’t be an effective employee was key.  Thus the appeals court reversed the trial court’s summary judgment of Gallagher’s case, noting that she indeed had presented material facts that merited review by a jury.  To read the full case, see here.

As always, we are happy to provide your workplace with specific guidance on how these legal updates impact your business.  For a free consultation, call MMC’s Labor & Employment Law Department at (800) 899-MMCI (6624).
 

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