David Raizman Quoted in Daily Journal

Los Angeles partner David Raizman was quoted in the Daily Journal in an article titled, “Increasing Disability Discrimination Claims Bring up Fraught Workplace Issues.”

The article discusses the rise of disability discrimination and failure to accommodate disability complaints in California, a state that has long had strong provisions against workplace disability discrimination.

Lawyers on both sides of the fence attribute the increased filings to a growing awareness of workplace disability rights among employees and an increased willingness among judges to put such claims before a jury.

California legislators have long employed a broad definition of disability, for example, to include conditions that merely “limit” various life activities, as opposed to “substantially limit” such activities.  Then in 2008, the U.S. Congress adopted many of California’s broad interpretations into federal law.

David, a partner in the Labor & Employment Practice Group, said, “California really led the way here” and, as a result, workers in the state are more likely to see a “less traditional” disability like obesity as something to be accommodated by employers.

David said he tells his clients that if the plaintiff has a medical diagnosis of any kind, a court will most likely consider him or her disabled.  He also said that plaintiffs’ lawyers have learned that the claims are likely to go before a jury because they’re “very hard to dispose of at the summary judgment stage.”

He noted that an employer’s claims of undue hardship in accommodating a disabled worker are “frankly, generally squishy concepts that are more subject to factual dispute than others.”

David added that as California’s workers age, claims of workplace disability discrimination will only continue to increase.

“Given the broad definition of disability, the population is getting more disabled,” he said.

Discrimination Claims Based on Denial of Religious Clothing Is “Low Hanging Fruit” to EEOC

By: Mark D. Nelson

At a recent workshop for attorneys, the Equal Employment Opportunity Commission provided guidance on what employers should consider when enforcing a dress code policy on religious clothing.

A senior EEOC attorney described cases involving religious clothing and grooming policies as “low hanging fruit” for EEOC enforcement efforts.  Among the cases the EEOC is investigating are claims of religious discrimination where employees have been disciplined or otherwise disadvantaged for donning Muslim head scarves, Sikh turbans and yarmulkes.  The EEOC is also pursuing cases involving religious tattoos.  In one case, EEOC recently sued a Burger King restaurant for religious discrimination because it fired a female cashier, who is a Christian Pentecostal, for refusing to wear uniform pants.  A tenet of the Christian Pentecostal faith is that its members should not wear the clothing of the opposite sex.  The woman’s offer to wear a skirt of modest length was rejected and she was discharged.

EEOC acknowledges that employers can have and enforce a dress code, but when it comes to dealing with employees who wear clothing for religious reasons or have special grooming requirements EEOC takes the position that exceptions to the policy may be required as an accommodation.  Under Title VII of the Civil Rights Act of 1964, an employer is required to accommodate an employee’s religious belief unless doing so would create an “undue hardship.”  According to the EEOC attorney, an undue hardship is “anything that would cause more than a de minims cost on the employer’s operation.”

Employers should be careful about arguing that absolute enforcement of a dress code policy is a business necessity.  The EEOC will scrutinize an employer’s ban on religious clothing that the employer justifies based in its desire to convey a certain image to customers and the public.  EEOC and the courts have recognized undue hardships where the religious clothing creates a safety hazard or where the garb may be mistaken as being the employer’s “message” to customers and clients.  However, employers should tread cautiously.   In one case, a court found that a county library discriminated on the basis of religion when it fired a librarian because she refused to remove a “cross necklace.”  The court held that library patrons were unlikely to believe that the cross was part of the county’s message.

Employers should review their dress code policies to ensure they are not discriminatory and that they recognize the possibility of accommodating religious clothing, jewelry and tattoos.  In addition, managers should be educated to understand the employer’s rights and responsibilities when faced with an employee’s request to wear a religious article that may conflict with the dress code policy.

New Jersey’s Appellate Court Denies Employer’s Attempt to Dismiss Claims on Eve of Trial Based on Employee Agreement to Arbitrate

By: Lynne Anne Anderson and Jerrold Wohlgemuth

Can an employer litigate employment claims in court and then enforce an arbitration agreement against the plaintiff-employee on the eve of trial to avoid presenting the case to a jury?  The New Jersey Appellate Division just said, “No.”

Plaintiff Karen Cole was a nurse anesthetist employed by Liberty Anesthesia Associates, LLC to work at Jersey City Medical Center.  When her privileges were revoked by the Hospital, Liberty terminated her employment and she filed suit against both Liberty and the Hospital for retaliatory discharge under the New Jersey Conscientious Employee Protection Act (“CEPA”), and for discriminatory discharge based on her disability under the New Jersey Law Against Discrimination (“LAD”).

Cole settled her claims against the Hospital at the hearing on the Hospital’s motion for summary judgment.  Liberty did not settle with plaintiff at that time.  Instead, after defending the action for almost two years in litigation, Liberty moved to dismiss the claims against it one month later in a motion in limine filed three days before trial based on the arbitration agreement Cole had entered into in her employment agreement with Liberty.  The trial court enforced the arbitration agreement and dismissed the case on the eve of trial, and Cole appealed.

In a March 29, 2012 opinion, the New Jersey Appellate Division reversed and remanded the action for trial.  The court found that Liberty’s counsel had pursued the litigation – instead of seeking to enforce the arbitration agreement – as a deliberate trial strategy, and determined that Liberty was equitably estopped from enforcing the arbitration provision at the last minute before trial where it had failed to mention arbitration among the thirty-five affirmative defenses asserted in its Answer; failed to identify the arbitration agreement in discovery; and failed to raise the agreement in its motion for summary judgment on the merits.  The court observed that Liberty’s deliberate course of conduct was prejudicial to Cole where it had caused her not only to participate in extensive discovery, but also to prepare to try her case before a jury, which the court noted required a great deal more preparation than presenting a case in arbitration.

To read the published opinion in Cole click hereCole is reported at 425 N.J. Super 48 (App. Div. 2012).

New Jersey Appellate Division Re-affirms Employers Are Not Required To Provide Indefinite Leaves Of Absence Under the New Jersey Law Against Discrimination

By: Jerrold Wohlgemuth

The New Jersey Appellate Division recently re-affirmed that an employer is not required to provide an indefinite leave of absence in order to meet its obligation under the New Jersey Law Against Discrimination (“LAD”) to reasonably accommodate the disabilities of its employees.  In Lozo-Weber v. New Jersey Department of Human Services, Plaintiff, who suffered from lupus, requested a medical leave of absence and submitted a doctor’s note indicating that she would be unable to work for at least one year.  The employer placed Plaintiff on leave pursuant to the Family and Medical Leave Act (“FMLA”).  Once she exhausted her FMLA time, the employer agreed to an accommodation of an additional six months of unpaid leave, advising her in writing that it could not continue the leave longer than that due to operational needs.  When the extended leave was about to expire, Plaintiff requested additional leave as an accommodation, but did not provide a date certain by which she would be able to return to work.  Instead, the doctor’s note stated only that she would need to be out of work for “approximately” six more weeks.  At the expiration of the approved six months leave, the employer terminated Plaintiff’s employment.

In affirming summary judgment for the employer on the claim of failure to accommodate under the LAD, the Appellate Division observed that the employer had provided Plaintiff with a reasonable accommodation by extending the FMLA leave by an additional six months.  The court further held that an indefinite leave of absence was not a reasonable accommodation where the Plaintiff admittedly could not say when she would be able to return to work.  While courts recognize that “reasonable accommodation” includes medical leaves of absence for reasonable periods of time, employers in New Jersey should look carefully at the notes submitted by doctors in support of requests for continued medical leaves, as there is no requirement to provide indefinite leave to employees who are physically unable to work and who cannot specify how long they will need to be out of work.

 

EEOC Issues New Guidance on Use of Arrest and Conviction Records Under Title VII

On April 25, 2012, the EEOC issued its first update in 20 years of its position on employers’ use of arrest and convictions records in making employment decisions.

The EEOC’s Guidance discusses employers’ use of arrest and conviction records in the context of Title VII of the Civil Rights Act’s prohibition on race and national origin discrimination. It first makes clear what most employers already know – employers cannot require or apply criminal background checks differently for one group of employees than another protected class of employees. The  focusof the EEOC’s new Guidance, however, is that reliance on criminal records can have a disparate impact on certain protected groups and, therefore, violate Title VII.

To read our full alert authored by Mark Nelson and Frank Nardulli click here.

EEOC Discrimination Charges Reach Record High

By: Aaron M. Moyer

According to the EEOC’s recently released statistics, the Commission received a record number of new employment discrimination charges last year.  For fiscal year 2011, the Commission received 99,947 charges of employment discrimination.  The Commission also obtained $455.6 million in relief, another record high.  This is a $51 million increase from the previous year and continues the upward trend of the past three years.

The statistics provided by the EEOC offer employers some guidance on the hottest issues before the Commission right now:

• Charges alleging retaliation under all of the statutes enforced by the EEOC were the most numerous, accounting for 37.4% of all charges.
• The agency’s enforcement of disability claims under the ADA resulted in a total of $103.4 million of the total $455.6 million obtained.
• The most common alleged disabilities were back impairments, orthopedic impairments, depression, anxiety disorder and diabetes.
• 2011 was the first full fiscal year of the EEOC’s enforcement of the Genetic Nondiscrimination Information Act (GINA).  Only 245 GINA charges were filed, none of which proceeded to litigation.

According to EmploymentLaw360, in a January 2012 speech to the New York State Bar Association, EEOC Commissioner Chai Feldblum discussed the growing number of EEOC cases alleging ADA violations in the service sector, particularly the healthcare and restaurant industries.  The Commissioner cautioned employers in specific areas: one-size-fits-all attendance policies, medical questionnaires that are unrelated to the job at hand, and rescinding job offers strictly on the basis of disability.  h/t Employment Law 360 (http://www.law360.com/employment/articles/303314?nl_pk=6f740239-75f3-4574-ac7d-3486fe3ce6dd&utm_source=newsletter&utm_medium=email&utm_campaign=employment)

The EEOC’s complete statistics can be found at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.