Partner In Partnership Does Not Have Standing to File FEHA Claim

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Published on Thursday, 17 May 2012 01:09

Mary Fitzsimons filed a lawsuit against the California Emergency Physicians Medical Group (CEP) for alleged unlawful retaliation (based on her complaint of sexual harassment) pursuant to the California Fair Employment and Housing Act (FEHA). The trial court found for CEP and Fitzsimons appealed, alleging that the trial court erred in concluding that a partner does not have standing to assert a claim for retaliation under the FEHA against his or her partnership. On appeal, the court of appeal agreed that the FEHA does support a claim for retaliation by a partner against his or her partnership for opposing sexual harassment of an employee. Specifically, as the court noted, although the FEHA prohibits discrimination or harassment, and retaliation for complaining about such conduct, the fundamental basis for liability is the existence of an employment relationship between the one who discriminates and the individual claiming discrimination/harassment.  However, if there is no proscribed employment relationship, FEHA does not apply. Read More.

EEOC Makes State Charge Data Available Online

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Published on Wednesday, 16 May 2012 04:11

The U.S. Equal Employment Opportunity Commission (EEOC) has made available for the public the private sector workplace discrimination charge statistics for each of the nation’s 50 states and U.S. Territories for fiscal years 2009-2011. The employment data provides a look at EEOC charge receipts, broken down by the basis of discrimination, as well as the percent of total state and national charges. The EEOC will update the state data when new charge statistics are available each fiscal year. Read More.

Employer Settles Race Discrimination Lawsuit for $600,000

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Published on Monday, 07 May 2012 18:20

Race discrimination and retaliation violate Title VII of the Civil Rights Act of 1964. And, as a recent case demonstrates, race discrimination claims can be costly for employers. The case involves Bankers Asset Management, Inc., a real estate company in Little Rock, that has agreed to $600,000 to former employees and a class of applicants to settle a race discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity (EEOC). According to the EEOC, the company allegedly excluded black applicants for jobs based upon their race.

The EEOC also alleged that the company then retaliated against other employees and former employees for opposing or testifying about the race discrimination, by demoting employees, by forcing one of the employees out of her job, and by suing others in state court. In addition to the settlement amount, the company must: (1) provide mandatory annual three-hour training on race discrimination and retaliation to all of its employees; (2) have its president or another officer appear at the training to inform staff of the company’s non-discrimination policy; that the company will not tolerate such discrimination; and the consequences for discriminating in the workplace; (3) maintain records of complaints of race and retaliation discrimination; (4) provide annual reports to the EEOC regarding such complaints; (5) issue a memo to one of the hiring officials explaining that the company does not discriminate on the basis of race and retaliation; and (5) post a notice to employees about the lawsuit that provides the EEOC’s contact information.

EEOC General Counsel David Lopez commented on the settlement stating that “Excluding qualified individuals from job opportunities because of their race or in retaliation for exercising protected rights are fundamental violations of the laws we enforce…As this case demonstrates, the EEOC is prepared to vigorously pursue such cases and resolutions that help ensure that workplaces will be free from discrimination. Recent cases we have filed alleging hiring discrimination, such as our suit against Bass Pro, demonstrate this continued commitment.” Read More.

According to the 5th Circuit, “Indefinite Leave is Not a Reasonable Accommodation”

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Published on Thursday, 03 May 2012 18:54

In a recent unpublished decision from the 5^th Circuit, the federal appellate court ruled that “Indefinite leave is not a reasonable accommodation.” Although this is not a citable decision, it is interesting to consider the court’s analysis in a case involving an employee claiming disability discrimination pursuant to the Americans with Disabilities Act (ADA). The case involves Andrew Amsel (“Amsel”) who worked for the Texas Water Development Board (TWDB) which is a state agency that provides water planning, financial and technical assistance, and data collection for the State of Texas. Amsel worked in various positions until his termination in August 2007. During his time working with TWDB, Amsel suffered from several medical conditions including ischemic heart disease, functional class IV angina, and a major digestive disorder. From 1997 to 2005, Amsel worked in TWDB’s information technology group as a Systems Analyst and was provided significant telecommuting accommodations that allowed him to work from home despite his health difficulties.

In August 2004, Amsel’s position was identified as one that faced outsourcing. As a result of the additional stress this caused, Amsel sought treatment from his primary care physician, who recommended that Amsel be provided a flexible work schedule that would allow him to continue telecommuting. Amsel then met with the company’s Human Resources Director about the doctor’s recommendation. TWDB determined that Amsel qualified to fill a back-up role to a TWDB employee in another department. However, his telecommuting was ultimately reduced from about two hours a day to one hour a day. In 2007, Amsel traveled to Thailand to receive cardiac stem-cell treatment. Upon Amsel’s return, he was unable to return to work but requested assignments he could perform from home or the ability to transition back to part-time. TWDB did not agree to this because Amsel was on sick leave and not expected to work. Amsel’s doctor then submitted another FMLA request indicating that Amsel was “unable to work at all” under his present condition. However, Amsel was ineligible for additional FMLA leave because he had not worked 1250 hours in the previous calendar year. TWDB thus awarded Amsel 720 hours from the sick-leave pool.

On June 6, 2007, Amsel  advised TWBD that he was still interested in working from home, but that he was still not released to work. Subsequently, Amsel’s position was eliminated due to budget cutbacks. Amsel then sued TWDB for disability discrimination pursuant to the Americans with Disabilities Act (ADA).

The district court granted TWDB’s motion for summary judgment and Amsel appealed. On appeal, the 5^th Circuit observed that “TWDB provided various accommodations hroughout his tenure, allowing Amsel to telecommute, providing a flexible work schedule, and creating a new position for him when stress exacerbated his conditions.” Further, as the court noted “the evidence undisputedly reflects that Amsel was completely unable to come to work at the time of the adverse employment action. Indeed, though his e-mails to TWDB expressed a desire to work from home, Amsel himself clearly indicated that he was not cleared to work. Amsel was only “qualified” if he could do the job with reasonable accommodation. Amsel, however, was not able to come to work and had not been in the office for months at the time of his discharge. Indefinite leave is not a reasonable accommodation. ‘Nothing in the text of the reasonable accommodation provision requires an employer to wait an indefinite period for an accommodation to achieve its intended effect.’”

The 5^th Circuit thus held that “that Amsel was not ‘qualified’ for his job at the time of his dismissal because he could not perform the job’s essential functions. Because Amsel was not a ‘qualified individual’ with a disability, he cannot establish a prima facie case of disability discrimination under the ADA or the Rehabilitation Act.” Read More.