Workplace Investigations Blog : California Employment Investigation Lawyer & Attorney : Debra Reilly Law Firm : CA Personnel, Sexual Harassment & Equal Employment Opportunity (EEO) Investigator

The Equal Employment Opportunity Commission ("EEOC") is getting out the word on how it views the new Amendments to the ADA.   Peggy Mastroianni, Esq., Associate Legal Counsel of the EEOC, Washington, DC, office recently spoke to lawyers and human resources professionals in Pasadena, CA.  I attended the EEOC Training Institute's seminar, and here is a portion of what Attorney Mastroanni (whose job it is to help the EEOC interpret what EEO statutes mean for the public and EEOC employees) said about the ADAAA.

She stated that the amendments changed the definition of "disability," but do not change anything about the merits of, or substance of, the law or how to accommodate an employee. Thus, once an employer determines someone is covered by the ADA (is disabled), everything else stays exactly the same.   However, the amendments clarified existing law that if an employee is “regarded as” disabled, the employee is not entitled to accommodation.

Broadened Definition of “Disability”:  She noted that California law already had this broad definition of disability a long time ago.  Originally, the ADA said that all you needed was an “impairment” (easy to prove by an x-ray or prozac prescription) and "substantially limits" a major life activity.  But, federal courts had been ruling that “substantially limits” required a high showing of limitations by the employee.  Attorney Mastroianni referred to the Sutton trilogy of U.S. Supreme Court cases from 1999.  

• First case:  employee had poor eyesight, but vision was corrected with eyeglasses.  
• Second case:  employee had hypertension, but took medication for the condition.  
• Third case:  employee had monocular vision, but was able to train his brain to address his deficits.

All employees had taken "mitigating measures," so did they have a disability?   Did they have a condition that "substantially limited a major life activity," and is that question to be answered in light of their mitigating measures?   Attorney Mastroianni noted that the EEOC and 9 out of the 10 federal circuit courts held that an employer/courts, etc. should not even consider mitigating measures at all in determining whether an employee is disabled.  Only 10th Circuit Court of Appeals was in disagreement and the U.S. Supreme Court adopted that view.  Thus, courts were holding that diabetes with insulin was not a disability; epilepsy with medication and no seizures in years was not a disability, etc.

In the 2002 case, Toyota Motor Mfg., Ky. v. Williams, where the employee had tendonitis (which had developed from applying chemicals all day to the tops of cars), the U.S. Supreme Court said that proving a disability is a "demanding standard"--even though the ADA statute itself repeatedly says it is to be "interpreted broadly."

Attorney Mastroianni notes that Congress partially blamed the EEOC because the EEOC's own regulation defines “substantially limits" as “substantially restricts,” which was inconsistent with Congressional intent.  So, the bottom line concerning mitigating measures is, you cannot look at an employee's mitigating measures to determine whether he/she has a disability (except where the mitigating measure is ordinary corrective lenses).  

What about "episodic" medical conditions, such as, Multiple Schlerosis, Epilepsy, Bi-polar Disorder, or Asthma?  Are these episodic conditions "disabilities"?  Yes, if they are "substantially limiting" a major life activity while the episode is occurring.   

What if the condition is in remission (for example, cancer)? Yes, if the employee would be substantially limited if it (the cancer) were to recur, then it is a disability.  

This change in the federal law will no doubt affect California state law cases where these gray areas may be at issue.   Employers should insure that their managers are aware of these changes. Workplace investigators should be on the look out for revised EEOC regulations to make sure these claims are correctly investigated and that their findings are consistent with the new law. 

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The question of "what is religion?" has been litigated extensively.  What do you think about these groups? Rastafarian, Wiccan, Church of Marijuana, Voodoo, Atheism, Ethical Culture Society, Church of Body Modification?  

According to the EEOC Technical Assistance Training Seminar I attended last week in Pasadena, "religion" is defined as follows:

A sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by God.

• Religion includes not only traditional organized religion, but also "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." (Note: this would cover "atheism".)

Some courts say that religion refers to ultimate ideas about life, purpose, death, including right and wrong.

I once investigated a religious discrimination case where the female employee refused to enter the male supervisor's office to receive an "official discussion" (the first step of progressive discipline for this employer) for something she had done wrong at work. When she repeatedly refused to come into the supervisor's office, she was given a "letter of warning" for insubordination for refusing to come into his office to receive her official discussion.   When she filed her EEO claim alleging "religious discrimination," she identified her religion as follows:  "My husband and I vowed to never be alone in a room with a person of the opposite sex."   Does that spousal vow constitute a "religion"?  Personally, I highly doubt it.  However, I could see this employee arguing that her articulated religion falls within the second bullet point above:  "a moral or ethical belief as to what is right and wrong which is sincerely held with the strength of traditional religious views."  

As an EEO investigator, it is not always easy to predict what a court might say on this question. However, the EEO investigator does need to probe all of these facets of what courts believe make up a "religion" and the investigator should probe into whether the belief is "sincerely held" by looking at the employee's prior conduct for consistency (or lack of) regarding the "belief" or whether something else is truly motivating the employee's conduct or religious accommodation request.

According to the EEOC presenter, Michael J. Farrell, Esq., Supervisory Trial Attorney of the EEOC Los Angeles District Office, religion does NOT include:

• Practice or espousal of social, political, or economic philosophy.
• Personal preference.
• Some cases identify single dimensional beliefs as not constituting a religion, such as, "Church of Marijuana."

According to Attorney Farrell, an employer can ask for the employee to corroborate his claims of religious beliefs, and of course, the employer can always challenge whether the beliefs are "sincerely held."   See my prior post on "sincerely held beliefs."

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I recently attended an EEOC Training Seminar in Pasadena where Maurice Emsellem, Esq., Director of the Second Chance Labor Project and National Employment Law Project provided an enlightening discussion on how criminal background checks have a disparate impact on people of color, California African American job applicants in particular.  An interesting fact is that about one in five adult Californians has a criminal record on file with the State.  You can view one of his Powerpoint Presentations to see the work reentry challenges these applicants face in California (19.4% of the Nation's total).  

According to Attorney Emsellem, one of the main problems is many employers have "blanket prohibitions" against hiring anyone with any kind of a criminal record, no matter how old the conviction and no matter what the prior offense was.

Along these same lines, the EEOC has posted some guidelines about employers using "conviction records" as a screening method.  Workplace investigators should review these EEOC guidelines prior to undertaking the investigation of a "failure to hire" claim.  The EEOC policy strictly limits consideration of prior criminal convictions.

• Business Necessity Defense:  Employers must justify employment decisions based on convictions, as follows:  

1. The conviction must be "job-related" taking into account the nature and gravity of the offense or offenses;
2. The nature of the job held or sought; and 
3. The time that has passed since conviction and/or completion of the sentence.

• Rejected Defense:  Employer's argument that it has a significant representation of that minority race in its existing workforce (the "bottom line" defense) is not a valid defense to a disparate impact claim.   Connecticut v. Teal, 457 U.S. 440 (1982).  

Footnote 6 of the EEOC Guidelines states:

The [EEOC's] revised business necessity analysis follows a decision by the United States Court of Appeals for the Eighth Circuit in the Green v. Missouri Pacific Railroad Company case. Green, 523 F.2d 1290 (8th Cir. 1975), is the leading Title VII case on the issue of conviction records. In that case, the court held that the defendant's absolute policy of refusing employment to any person convicted of a crime other than a minor traffic offense had an adverse impact on Black applicants and was not justified by business necessity. On a second appeal in that case, following remand, the court upheld the district court's injunctive order prohibiting the defendant from using an applicant's conviction record as an absolute bar to employment but allowing it to consider a prior criminal record as a factor in making individual hiring decisions as long as the defendant took into account "the nature and gravity of the offense or offenses, the time that has passed since the conviction and/or completion of sentence, and the nature of the job for which the applicant has applied." Green v. Missouri Pacific Railroad Company, 549 F.2d 1158, 1160 (8th Cir. 1977) (emphasis added).

Accordingly, EEO investigators should be aware of the need for an employer to make "individualized hiring decisions", based on the three criteria delineated by the EEOC in its guidelines, rather than utilizing a "blanket prohibition" of applicants with prior convictions.

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EEO Investigators should examine all kinds of evidence in an investigation:  direct evidence, circumstantial evidence, and statistical evidence (if possible, but usually not practical if expert opinion is required).  

In a recent 9th Circuit case (EEOC v. The Boeing Co.), the Equal Employment Opportunity Commission (“EEOC”), on behalf of two Boeing employees, argued that the trial court erroneously granted summary judgment in favor of Boeing.  The employees alleged discrimination and retaliation under Title VII of the Civil Rights Act of 1964 after they were RIF'd.  Boeing had terminated these two employees after they received low scores on reduction-in-force (“RIF”) assessments, which Boeing used to evaluate employees when determining whom to lay off.  

The 9th Circuit held that the EEOC had introduced adequate evidence from which a reasonable jury could have concluded that the reasons Boeing advanced to justify its employment actions were pretextual.  Accordingly, the 9th Circuit reversed and remanded the case for trial.  See EEOC v. The Boeing Company, Case No. 07-16903 (9th Cir. 2009).

What can an EEO investigator take from this case?  This case demonstrates how investigators should look closely at the "legitimate non-discriminatory reason" or "legitimate non-retaliatory reason" provided by the employer, and determine whether any circumstantial or direct evidence is contrary to the proffered reason for the adverse employment decision.  In the Boeing case, the 9th Circuit believed that the facts demonstrated enough evidence for a reasonable jury to believe that Boeing's proffered reason (low test scores on RIF assessments) for its actions was really a "pretext" (i.e. fake or phony excuse) for discrimination.

The Boeing Court explained that two ways exist to determine "pretext":

“[E]ither directly by persuading the [fact-finder / EEO Investigator] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”

Concerning one of the two employees, the Court found "direct" evidence of sexually discriminatory animus because of demeaning comments a decision-maker had made about women in general.   The Court noted that the employee's poor RIF evaluation scores, which led to her termination, were pretextual because her supervisor in her new department had previously referred to her as a “little girl” and made a “joking” inquiry as to whether she “broke a nail.”  Although these comments occurred two years prior to her firing, and Boeing argued that these comments were merely inadmissible “stray remarks," the Court held that the supervisor's comments constituted at least some evidence of discriminatory animus. 

The Court added that in RIF cases, an employee can “show through circumstantial, statistical or direct evidence that the termination occurred under circumstances giving rise to an inference of . . . discrimination.”   Here, the Court also found "specific and substantial circumstantial evidence" of pretext in that the decision-maker:

• Initially refused to transfer the employee at all;
• Made promises to transfer her to the department she requested;
• Agreed to transfer her, but only to a different department to which no other engineers from her department had been transferred in recent years; and
• Assured her that she would be exempt from the RIF process during her training in order to induce her to accept the transfer despite her explicit (and not unwarranted) concern that the transfer might significantly increase her risk of termination.

In short, a workplace investigator needs to look at all the direct and circumstantial evidence carefully to determine whether the employer's "legitimate business reason" was a pretext.  In an EEO investigation, the investigator is the fact-finder and must evaluate credibility of the witnesses and try to access the real motivations of the decision-maker.  The investigator needs to ask the complainant employee to articulate all the reasons why he/she believes the employer's alleged business reason is a really a façade (or pretext) for a hidden discriminatory motive.

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Yesterday, a fellow employment law blogger, Jon Hyman of the Ohio Employer's Law Blog, made an interesting post.  Sexual orientation discrimination by an employer is still legal in Ohio, so some creative plaintiff's lawyers in Ohio have argued that the employers' actions constituted religious discrimination because the plaintiff employees' lifestyles did not comport with their employers' conservative religious views.  

For example, in Pedreira v. Kentucky Baptist Homes for Children, Inc. (6th Cir. 8/31/09) [PDF], the employer admitted that it fired the plaintiff because of her sexual orientation. The 6th Circuit found that because sexual orientation is not a protected class, Pedreira did not have a sex discrimination claim under Title VII.  However, Pedreira also sued for religious discrimination claiming that living openly as a lesbian was not in line with her employer’s religion and that she was terminated because she did not hold the employer's religious belief that homosexuality is sinful.  The 6th Circuit disallowed the employee's religious discrimination claim.

As another example, in Prowel v. Wise Business Forms, Inc. (3rd Cir. 8/28/09) [PDF], the 3rd Circuit allowed an effeminate gay man to bring a sexual harassment claim based on allegations that his co-workers called him names such as Princess and faggot.  However, Prowel also sued for religious discrimination claiming that his co-workers harassed him because his homosexuality was against their religious views.  The 3rd Circuit disallowed the religious discrimination / harassment claim.

As we know, sexual orientation harassment and discrimination are illegal under California state law, but according to Change.org, sexual orientation discrimination remains legal in 29 other states.   It also remains legal under federal law until Congress passes the proposed Employment Non-Discrimination Act of 2009 ("ENDA").  

So, what is the status of the ENDA?  It was introduced into the House on June 19, 2009, by Massachusett's Democrat Barney Frank, and on July 23, 2009, it was referred to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties.  

Although sexual orientation discrimination and harassment is already illegal in California, awareness of the ENDA will be crucial for workplace investigators who handle EEO investigations for federal employers, agencies, and contractors.

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A benefit of using employment applications in hiring is the ability of the employer to directly ask an applicant if he/she has a criminal history that would show up if a thorough background check was conducted, according to Lester S. Rosen of Employment Screening Resources in his August 2009 article in the Lorman Education Service Labor and Employment Law Update Newsletter.

He states that "one problem is that many employers use language that is either too narrow, too broad, or too ambiguous to successfully accomplish this," and each of these errors may lead to legal problems or bad hires. This post addresses the job application that is "too narrow."

According to Attorney Rosen:

"An example of a question that is too narrow is to only ask about felonies.  Many standard employment applications only ask if an applicant was convicted of a felony. That allows the application form to be used in all states. However, misdemeanors can be very serious.  Under California law, for example, most employers would want to know if an applicant had a conviction for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in California and other states, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that he or she has not been convicted of a felony even though there may be serious misdemeanor convictions an employer needs to know about. A best practice would be to utilize an application form that asks about past criminal conduct in the broadest language allowed by law in your state."

Personally, I have had this issue come up in an EEO investigation, but in the context of an employer learning about a criminal conviction after the employee was hired.  It should be noted that "having a prior criminal record" is not a protected class under any EEO laws, thus, it is not something that normally would trigger an EEO investigation.  However, this is an issue that can creep into any workplace investigation.  For example, it may come up in a "mixed motive" case where an employer based its employment decision on a legitimate business reason, but the employer contemporaneously "discovered" a past conviction of the affected employee.

A number of limitations exist under state and federal law concerning what an employer may legally ask about or "discover" concerning an applicant's or employee's criminal record. Under California law, an employer who knowingly violates some of these rules could be unwittingly committing a misdemeanor. 

California Labor Code Section 432.7 prohibits employers from asking about an arrest or detention that did not result in a conviction. There is an exception for certain arrest records when the applicant is applying for work at a health care facility and would have access to patients, drugs or medication.  Further, California law limits the consideration of any misdemeanor conviction information in cases where probation has been successfully completed or otherwise discharged and the case has been judicially dismissed when making employment decisions.

An employer should consult with its attorneys on how to most broadly draft this question on an employment application without crossing the line.  

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Knowledge of Familial Disabilities

When investigating a claim of preferential treatment (or disparate treatment) by an employee alleging "Caregiver Disability Discrimination," the EEO investigator should first try to obtain information about familial disabilities of the employee who was allegedly treated preferentially in the case at hand.  The EEO investigator should first ask the complainant employee if he/she knows anything about the preferentially treated employee's family and whether any have "known" disabilities.  Also, ask the responsible management official (the decision-maker) if he/she has any information about familial disabilities of the preferentially treated employee.  

If the preferentially treated employee ALSO has a similarly disabled family member, it will be much harder for the complainant to prevail on his/her claim.  If management says they had no knowledge of any familial disabilities of the preferentially treated employee, then the question ends there. Whether the preferentially treated employee actually has disabled family members is not something the EEO investigator would need to delve into because it is not relevant unless the decision-maker knew about it when he/she made the decision. If the management official was aware of familial disabilities of the preferentially treated employee, then they can describe what they knew to the EEO investigator.  

If management says they had no knowledge of any familial disabilities of the preferentially treated employee, then the EEO investigator needs to examine management's explanation for their actions. Can management articulate a legitimate, non-discriminatory reason for their actions and why complainant was treated differently?  Is the reason they give a pretext (fake excuse or ploy) for a true discriminatory motive?

Similar Prior Decisions by Management

Secondly, an EEO investigator can, and should, also seek "comparative data" based on similar prior decisions by the "decision-maker" with other employees ("comparators").  So, depending on the size of the employer, I usually ask the responsible management official to go back about one or two years to describe all similar incidents and address whether any of the employees he/she gave preferential treatment to had disabled family members. It is very important to only ask for "known" information, that is, information the decision-maker knew at the times they made their decisions in the comparative situations. Sometimes management witnesses want to "help" by finding out the answers for an EEO investigator.  Witnesses need to be cautioned that they are not to "research" the EEO investigator's questions, unless specifically asked to do so.

If the management official can show that he/she had knowledge of familial disabilities of the favorably treated employees (including the employee treated preferentially in the pending investigation) in similar situations or under similar circumstances, then this is fairly strong evidence that the management official does not have a propensity to discriminate against employees who have disabled family members.  However, as in every case, this evidence must be weighed against other factors too, so it is not a perfect litmus test.

Employer Must Show Legitimate Non-discriminatory Reason for Actions

Discrimination laws do not prevent employers from firing a disabled employee or his/her caregiver. They simply require that employers have a legitimate non-discriminatory reason for the termination. "Nondiscriminatory" means you have terminated similarly situated employees for the same reason and haven't discriminated on the basis of protected group status.  "Legitimate" means a non-pretextual reason.

An employer's pre-termination actions with the complainant and the comparator employees, especially comparator documentation, should be examined closely by the EEO investigator to determine if the documentation supports the employer's stated legitimate reason for the adverse employment action.

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