On April 30, 2014, the United States Court of Appeals for the Ninth Circuit reinstated a lawsuit filed by Plaintiff Ronald El-Malik Curtis against the City of Oakland, and several individual city officials on the ground that facially-neutral conduct could support a finding of racial animus sufficient to sustain a hostile work environment claim when other racially-discriminatory conduct is present. (Curtis v. City of Oakland, No. 12-15831, per curiam.)

Plaintiff, an African-American firefighter and paramedic filed a lawsuit in 2010 claiming that he and several of his African-American colleagues working for the Oakland fire department were being harassed and subjected to a hostile work environment on the basis of their race.  Of the three shifts that comprised Plaintiff’s particular fire department unit – referred to as Shifts A, B, and C – all African-American firefighters in the unit were staffed to Shift B.  Plaintiff alleged that firefighters working Shifts A and C would frequently make disparaging comments about the firefighters working on Shift B, often referring to Shift B employees as “the brothers.”  In addition, on more than one occasion Shift B employees found their personal items missing or vandalized, their food tampered with and, on one occasion, a dead bird was found underneath Plaintiff’s bed at the station house.

District Court Judge Susan Illston granted summary judgment to defendants on the grounds that even if Plaintiff’s allegations of pervasive mistreatment were true, there was no evidence to suggest that the abusive treatment Plaintiff suffered was racially-motivated.  Indeed, the events alleged by Plaintiff were facially race-neutral, aimed more at humiliating Plaintiff’s shift generally than at Plaintiff particularly, and several actions — such as the food-tampering and dead-bird incidents — lacked a known perpetrator.  Under these facts, the District Court determined that Plaintiff could not sustain a claim for hostile work environment race discrimination.

The Ninth disagreed, finding that a reasonable jury could interpret the behavior alleged by Plaintiff may have unlawfully targeted Shift B on race-related grounds. The Court reasoned that “although some of the conduct appeared to be directed at Curtis’s shift, in general – as opposed to African Americans, specifically – the circumstances suggest that Curtis’s shift may have served as a proxy for the animus particularly given that it was predominantly made up of African-Americans and there were no other African-Americans on the other shifts during the relevant time period.”  On these grounds the District Court’s summary judgment ruling was reversed and the case remanded.

The Curtis decision arguably broadens the scope of liability for hostile work environment claims brought federal courts within the Ninth Circuit.  Employers should be mindful that repeated antagonistic behavior aimed a particular shift or other work segment predominantly comprised of protected classmembers — even if facially race-neutral — may provide a sufficient basis to withstand summary judgment proceedings if a hostile work environment claim is ever litigated.

 

An employer did not violate the federal Family and Medical Leave Act by requiring an employee to undergo a fitness-for-duty evaluation after it had restored her to her position following a medical leave of absence for psychological issues, the California Court of Appeal has ruled. White v. County of Los Angeles, No. B243471 (Cal. Ct. App. Apr. 15, 2014). Reversing a permanent injunction prohibiting the employer from requiring the evaluation, the Court noted the request for an evaluation was appropriate, given the employee’s erratic conduct prior to her leave and the requirement that she carry a weapon as part of her job. To read more, click here.

Finding an intern had produced sufficient evidence for a reasonable jury to conclude his supervisor engaged in a pervasive pattern of harassing conduct “because of sex,” including numerous gifts, frequent lunch purchases, along with sexual jokes and displays of pornographic computer images, the California Court of Appeal has allowed his harassment suit to proceed, reversing a lower court’s summary judgment against the plaintiff. Lewis v. City of Benicia, No. A134078 (Cal. Ct. App. Mar. 26, 2014). The Court further found the trial court erred in excluding evidence of the alleged harassment in the intern’s retaliation claim against the City of Benicia and ordered a retrial on the retaliation claim. To read more, click here.

San Francisco has joined the growing numbers of cities and states around the country implementing “ban the box” legislation which restricts inquiries regarding an applicant’s criminal records on applications for employment and during job interviews.  The EEOC recommends “banning the box” in line with its guidance regarding convictions and consideration in use of information based on job-relatedness.  Currently, 10 states have “ban the box” laws in some form impacting public or both public and private employers.  These states include Hawaii, California, Colorado, New Mexico, Minnesota, Illinois, Rhode Island, Connecticut, Massachusetts and Maryland.  Other states that have “ban the box” legislation pending include Delaware, New Jersey, Michigan, North Carolina and Ohio, among others.  San Francisco’s Fair Chance Ordinance becomes operative on August 13, 2014 and applies to private sector employers in the city of San Francisco.  For specifics regarding the San Francisco ordinance click here for information.

Timing is not everything. In Rope v. Auto-Chlor of Washington System of Washington, Inc., the employer fired an employee for purported performance reasons on December 30, 2010 – two days before California’s Michelle Malkin Donor Protection Act became effective.   The timing was significant because when the employee was hired in October of 2010, he had told his employer that he needed to take leave in February of 2011 to donate a kidney to his sister, and he later requested 30 days of leave (the maximum involved under the new donor protection law) in February of 2011. The California Court of Appeals held that the employee could not state a claim under the Michelle Malkin Donor Protection Act because the Act was not yet in effect. However, the Court permitted the employee’s claim of “associational” disability discrimination to go forward, allowing the employee to litigate the question of whether the employer had terminated him due to his association with his sister. For more on this interesting case, click here.

On October 10, 2013, California Gov. Jerry Brown signed a bill, A.B. 556, to add “military and veteran status” to the list of categories protected from employment discrimination under the California Fair Employment and Housing Act (“FEHA”).

When this bill becomes operative on January 1, 2014, the FEHA will prohibit harassment and discrimination in employment because of:

• Race
• Religious Creed
• Color
• National Origin
• Ancestry
• Physical Disability
• Mental Disability
• Medical Condition
• Genetic Information
• Marital Status
• Sex
• Gender
• Gender Identity
• Gender Expression
• Age
• Sexual Orientation
• Military and Veteran Status

“Military and veteran status” will be defined to mean any person who is “a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.”

As a general reminder, any employer regularly employing five or more persons is covered by the FEHA. Employers subject to the provisions of the FEHA include private employers as well as state, city, county, and other government bodies. In fact, all governmental employers are covered under the FEHA regardless of size. Also covered are labor organizations, employment agencies, and apprenticeship programs. Furthermore, when harassment is at issue, every employer employing one or more persons or receiving the services of one or more independent contractor(s) is subject to the FEHA’s prohibition of harassment. Additionally, individual employees who harass another co-worker in violation of the FEHA can be held personally liable.

On September 26, 2013, California Gov. Jerry Brown signed a bill, A.B. 241, to give overtime pay to domestic workers such as caregivers, childcare providers, and housekeepers who work in private homes.

The bill enacts California Labor Code Sections 1450-1454 and will take effect on January 1, 2014. Under the new sections, domestic employees must be paid overtime pay at one-and-one-half times their regular pay rate after they work more than nine hours in one day or more than 45 hours in one week. The law is set to expire on January 1, 2017, unless lawmakers decide to extend it.

The new sections define “Domestic work” as “services related to the care of persons in private households or maintenance of private households or their premises.  Domestic work occupations include childcare providers, caregivers of people with disabilities, sick, convalescing, or elderly persons, house cleaners, housekeepers, maids, and other household occupations.” Accordingly, “Domestic work employee” is defined as “an individual who performs domestic work and includes live-in domestic work employees and personal attendants.”

Employers subject to California Wage Order 15 regulating Household Occupations should review their practices where the employer is relying on the Personal Attendant overtime exemption (Section 1(B)). Wage Order 15 defines “Personal attendant” as including“baby sitters and means any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision.” Employers with employees exempt from overtime provisions based on the Personal Attendant exemption must determine whether the employees will still qualify.

Labor Code section 432.7 prohibits employers from considering, or asking applicants about, information concerning: (1) arrests or detentions not leading to conviction or (2) referral to, or participation in, a pretrial or post-trial diversion programs.  Newly passed SB 530 adds to these restrictions, amending section 432.7 to prohibit employers from asking job applicants about criminal records that have been expunged, sealed or dismissed.  Employers are exempt from these requirements if: (1) the employer is required by law to obtain such information; (2) the job would require the applicant to possess or use a firearm; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that crime has been judicially dismissed, expunged, statutorily eradicated or ordered sealed; or (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.  Employers should review their job applications to confirm compliance with the new law, and they should review with legal counsel any questions regarding exemptions.

Labor Code 226.7 provides that an employee should receive one hour of pay as a penalty for not receiving rest or meal periods in accordance with California law. Yesterday, Governor Brown signed into law SB 435 which expands the one hour of pay penalty to missed “recovery periods.”  The new law applies to any meal, rest or recovery period mandated by applicable statute, regulation, standard, or order of the California IWC, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.

SB 435 defines “Recovery Period” as “a cool down period afforded an employee to prevent heat illness.” Employers may consider reviewing the CA OSHA resources for preventing heat illness. For example, when the outdoor temperature exceeds 85 degrees Fahrenheit, CA OSHA mandates a recovery period of not less than 5 minutes for employees who work outside to take a cool-down rest, in the shade, to protect themselves from overheating.  The new law will likely lead to an increase in litigation. As a result, employers should review their procedures and policies.

On September 24, 2013, California Governor Jerry Brown signed into law a bill that expands the application of the Family Temporary Disability Insurance program beginning on July 1, 2014. Family Temporary Disability Insurance is also known as Paid Family Leave. Paid Family Leave is a paid benefit provided by California Employment Development Department (“CA EDD”) when an employee is on an authorized employer leave. Paid Family Leave does not create a new right to leave but instead provides a means for eligible employees to receive paid benefits from CA EDD when on an authorized leave. The new law (SB 770) amends Sections 2708, 3300, 3301, 3302, and 3303 of the Unemployment Insurance Code relating to unemployment insurance. Currently, the Paid Family Leave program provides up to six (6) weeks of wage replacement benefits to workers who take time off work to care for a seriously ill child, spouse, parent, or domestic partner or to bond with a minor child within one year of the birth or placement of the child in connection with foster care or adoption.
The new law expands the scope to also include paid benefits when an employee is taking time off to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law. The bill also makes conforming and clarifying changes in provisions relating to family temporary disability compensation. Employers should be sure to modify any related policies by July 1, 2014.