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

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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What is “religion”? May an employer question the sincerity of an employee’s alleged religious beliefs? The U.S. Supreme Court has defined "religious belief" as a belief that is: "religious" in the employee's own scheme of things and sincerely held by the employee. Thus, the law's protection extends beyond "traditional" religions.

One of the best examples of an attempt at a broad interpretation of the “sincerely held belief” standard is that of Bruce Anderson, an Orange County bus driver who was suspended and later fired from his job with the Orange County Transit Authority (OCTA) in 1996. The OCTA was running a promotion in conjunction with Carl’s Jr., which required all bus drivers to pass out coupons for free burgers to passengers.  Anderson refused on the grounds that he was a vegetarian and “could not support the slaughtering of cows.”

The case eventually settled out of court, but according to at least one recent EEO attorney blogger, Ronda Higgins Thornton, Anderson’s “ethical beliefs would have been upheld as sincerely held” and the “OCTA should have attempted to make a reasonable accommodation before terminating him.”  Attorney Thornton opines that a “reasonable accommodation in this case could have been allowing Anderson to place the coupons in a manner that passengers could pick them up without Anderson having to pass them out or transferring him to [a] non-driver position during the promotion.”

However, on the issue of “sincerely held religious belief,” I believe the better reasoned opinion is that of employment attorney Alan J. Reinach, set forth in the California Labor & Employment Law Review (March 2009 issue), in the cover article titled Religious Accommodation in California: How the Fair Employment and Housing Act Protections Compare to Title VII.

Attorney Reinach wrote:

"Employers may also challenge the sincerity of a particular belief.  Sincerity questions rarely arise in actual litigation, since most cases involve terminations, and the willingness to suffer loss of a job is itself compelling evidence of sincerity.  Courts also understand that they are not competent to evaluate the content of religious belief and thus are deferential to religious claims — even claims well outside the mainstream — if they do not seriously burden the employer.  For example, in EEOC v. Red Robin, the court respected the plaintiff’s claim that his tattoos were religious, expressing service to the sun god Ra, notwithstanding how unorthodox and uncommon the practice.  However, in Friedman . . . the court did not find veganism sufficiently religious to require a pharmaceutical manufacturer to accommodate a job applicant’s refusal to receive a mumps vaccine derived from chicken embryos.  The court discussed federal cases extending conscience protections broadly, especially in the arena of conscientious objection to military service, but refused to regard veganism as providing the sort of comprehensive world view necessary to qualify as a religion."

Religious discrimination cases are very interesting to investigate and there is usually some way to bring the sides together at the end of the investigative process so as to avoid litigation.  Here are some of the main issues that an investigator must look into:

• Does the complainant sincerely hold a religious belief that conflicts with employment requirements?
• Has the complainant informed his/her supervisor of the conflict?
• Has the complainant been penalized for failing to comply with employment requirements?
• Is the complainant’s belief or practice of a religious nature?

According to Attorney Thornton, “factors that may undermine an assertion of sincerely held beliefs are whether the employee behaves in a manner inconsistent with the professed belief and whether the benefit is likely being sought for secular reasons.” Accordingly, it is important to also investigate factors, which might also undermine the complainant’s assertion that he/she sincerely holds the professed belief(s).

And finally, could the employer have accommodated the religious belief without imposing an undue hardship on the employer?

The Supreme Court has defined "undue hardship" as expending more than a minimal effort or expense. This is much more favorable for employers than the standard under the Americans with Disabilities Act (ADA). Since that ruling, however, the Equal Employment Opportunity Commission (EEOC) and many courts have applied a more stringent test.

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The U.S. Department of Labor, in its Family and Medical Leave Act Advisor, recently clarified what an employer may require of an employee seeking to return to work from an illness. If the employer requires, the employee must provide a medical certification of the employee's fitness to return to work if the FMLA leave was taken for the employee's own serious health condition.

The employer's requirement must be made pursuant to a practice or uniformly-applied policy and FMLA applies only to the health condition which caused the employee to be unable to perform the functions of the employee's job. For example, if the employee took FMLA leave because a back injury prevented the employee from loading trucks, the employer could not require the employee to submit certification regarding HIV.

The employer's requirement for a fitness for duty medical certification must be communicated to the employee in writing, usually at the time the employee provides notice of the need for leave, or immediately after leave begins if unforeseeable.

The medical certification of the employee's fitness to return to work may be only a “simple statement” from the employee's doctor.

The requirement for a certificate of fitness to return to work must be job-related and consistent with business necessity pursuant to the Americans with Disabilities Act (ADA) as detailed in Regulations 29 CFR Part 825.310.  In a recent case I worked on, the trial judge interpreted the “job related” requirement very narrowly. The Judge opined that an employer must give specific job descriptions/job duties of all vacant positions to the employee’s physician, so the employee’s work restrictions may be precisely evaluated for his return to work. The judge opined that simply asking an employee for his/her “work restrictions” was overbroad and a violation of the law.  

To avoid this situation, employers may wish to err on the side of caution and be very precise when asking for “job-related” medical restrictions. For example, consider:

• Having specific jobs in mind when you make this request of your employees 
• Supplying the employee with written job descriptions that set forth the physical and mental requirements of the job

If all the employer's notification responsibilities have been met, and the employee fails to provide a fitness certificate as required at the time the employee is to return to work, the employer may delay the employee's return to work until the fitness certificate is provided.

Under some circumstances, if the employee fails to provide the fitness certificate, the employee may be terminated as noted in Regulations 29 CFR Part 825.311(c). 

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In a recent newsletter by HR Strategies, Staffing Concepts International, Inc. outlined some of the changes employers can expect with the new amendments to the Americans with Disabilities Act (ADA).

The Americans with Disabilities Act Amendments Act (ADAAA) was signed into law by President Bush on September 25, 2008, and became effective on January 1, 2009. The ADA prohibits discrimination and ensures equal opportunity for persons with disabilities in employment, state and local government services, public accommodations, commercial facilities and transportation. 

Employers should, by now, have trained their managers and supervisors about the new changes in effect under the ADAAA. If a company has 15 or more employees, they must comply with the ADA and the ADAAA. The ADAAA broadens the definition of a “disability” making more employees subject to protection under the ADAAA.  

Disability is now defined as:

• A physical or mental impairment that substantially limits one or more major life activities (see list below)
• A record of such impairment
• Being regarded as having such an impairment

The ADAAA specifically defines a “major life activity” to include, but not be limited to:

• Caring for oneself
• Performing manual tasks
• Seeing
• Hearing
• Eating
• Sleeping
• Walking
• Standing
• Lifting
• Bending
• Speaking
• Breathing
• Learning
• Reading
• Concentrating
• Thinking
• Communicating
• Working

 The ADAAA states that a major life activity includes the operation of a major bodily function, including, but not limited to:

• Functions of the immune system
• Normal cell growth
• Digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

In short, the definition of disability has expanded. Employers and EEO investigators should no longer be questioning merely whether someone is disabled, but rather, questioning whether a reasonable accommodation can be made. If an employee is only “regarded as" having a disability, no accommodations need to be made for that person.  If a disability is under control with medication (aka "mitigating measures"), or in remission, he or she can still be considered disabled under the ADA’s protections.

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In addition to protecting qualified applicants and employees with disabilities from employment discrimination, one ADA provision – the "Association" provision (42 U.S.C. § 12112(b)(4))-- protects applicants and employees from discrimination based on their relationship or association with an individual with a disability, whether or not the applicant or employee has a disability.

Protection Against Adverse Actions

According to the EEOC’s Questions and Answers About the Association Provision of the Americans with Disabilities Act, the purpose of the “association” provision is to prevent employers from taking adverse actions based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities.  Thus, it makes unlawful actions such as:

• Refusing to hire an individual who has a child with a disability based on an assumption that the applicant will be away from work excessively or be otherwise unreliable
• Firing an employee who works with people who are HIV-positive or have AIDS based on the assumption that the employee will contract the disease
• Denying an employee health care coverage available to others because of the disability of an employee's dependent

Reasonable Accommodation Not Required

However, the ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person's association with someone with a disability.  Only qualified applicants and employees with disabilities are entitled to reasonable accommodation. For example, the ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability. However, an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability.

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The new FMLA regulations give additional leave rights to military families and revise the FMLA in many new respects.  

Staffing Concepts International, Inc.’s recent newsletter article, FMLA: Overhaul of Regulations and the Impact on Employers, summarizes some of the recent changes to The Family and Medical Leave Act (FMLA). On November 17, 2008, the U.S. Department of Labor (DOL) published final regulations implementing the first major overhaul in over 10 years to the FMLA, which became effective January 16, 2009.  Two new leave entitlements – “Military Caregiver” leave and "Qualifying Exigency” leave have been created.

• Military Caregiver Leave: This leave is available to eligible employees who are family members of a covered service member who has a serious illness or injury incurred in the line of (active) duty.  Eligible employees will be able to take up to six months (26 workweeks) of leave in a single 12-month period to care for the service member. Employers must use the rolling calendar methods; the 12-month period begins when the employee starts using military caregiver leave. The calendar year method will not be an option for employees using this type of leave. The military caregiver leave entitlement provides for each service member and for each illness or injury incurred.
• Qualifying Exigency Leave:  Family members of the National Guard and Reserves are eligible for exigency leave when a member is on active duty or called to active duty status in support of a contingency operation. The 12-week leave allowance may be used all at once or intermittently. A qualifying contingency includes a broad category of reasons and activities, including short-notice deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and any additional activities agreed to by the employer and the employee.

The US Department of Labor's "Final Rule" on these FMLA Amendments also states that a “serious health condition” is defined as two visits to a health care provider occurring within 30 days of the start of the period of incapacity. The first visit to the health care provider must occur within seven days of the start of the incapacity.  Two new medical certification requirements (forms), including the ability to gather missing or insufficient information on a form, are also addressed in the new rules.

The new regulations expand the information that an employer may require in a fitness for duty certification. An employer may now require that the certification specifically address whether the employee can perform the essential functions of his or her job. Also, if an employer has reasonable concerns about an employee’s ability to safely perform a job, the employer can require an employee to provide a fitness for duty certification before the employee returns to work following an absence while on intermittent leave.

The new regulations also consolidate the particular types of notice employers must provide to their employees, as well as additional related information into one section.  Employees must now comply with an employer’s policies for reporting an absence, unless unusual circumstances prevent this, when the need for FMLA leave is required.  Employees may now use accrued paid leave as a substitute for unpaid FMLA leave, and employers may require employees to exhaust all paid leave before taking unpaid leave.  An employee must comply with the company’s policy for requesting such leave.

You can find a complete overview of the recent changes to FMLA on their website.

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