September 9, 1998California Supreme Court Holds That Workers' Compensation Is
Not The Exclusive Remedy For Injured Workers
[City of Moorpark v. Superior Court (98 C.D.O.S. 6367)]
In a major decision the California Supreme Court has held that Workers' Compensation is not the exclusive remedy for injured workers; such workers may also sue under the Fair Employment and Housing Act (FEHA) and the common law. This decision overturns a number of earlier cases.
Theresa Dillon was employed by the City of Moorpark as an administrative secretary. Following knee surgery she was terminated from her employment. She wanted to return work but was told that she would not be reemployed. She filed a suit to which the City responded by saying that Workers' Compensation was her exclusive remedy.
Following an analysis of the legislative history of the various applicable statutory provisions and the earlier case law, the Supreme Court concluded that Workers' Compensation does not provide the exclusive remedy for injured workers and that, therefore, claims under the FEHA and common law wrongful discharge claims may be pursued.
This case is likely to increase employment litigation since it affords employees more than one forum in which to litigate the same issue.
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Delay In Taking Pre-Employment Drug Test Does Not Preclude
Termination Of Employee Who Tests Positive
[Pilkington Barnes Hind v. Superior Court (98 Daily Journal D.A.R. 8855)]
Pilkington Barnes Hind (PBH), a private employer, offered John Visbal a position conditioned upon his passing a drug screening test. He was to take the test prior to leaving San Francisco to assume his new position in San Diego. The test was to have been administered by his private physician. Because of the unavailability of his physician in San Francisco, the test was not administered and Visbal relocated to San Diego and began work for PBH.
Shortly after beginning employment, PBH required Visbal to complete the test which was positive. PBH then terminated Visbal's employment. Visbal sued claiming that at the time he took the test he was an employee and that individualized suspicion was required in order for him to be required to take a drug test. PBH responded that for purposes of taking the drug test he was still an applicant. The Court of Appeal accepted the employer's reasoning, holding that
". . . [a] job applicant, who requests and receives a delay in submitting to the preemployment drug test permitted by Loder until after the start of employment, may not evade the employer's testing requirement postemployment on the ground that the applicant thereby became an ‘employee' and is, consequently, immune from such testing. In such circumstances, and for purposes of suspicionless drug testing, the job applicant who caused the drug testing delay must submit to such testing after the employment date. If the ‘employee' fails the test given in the brief period between employment and administration of the test, that employment, conditioned on passing the test which the ‘employee' delayed, may be terminated."This case reaches a logical conclusion which, under appropriate circumstances, may well be applicable in public sector employment.
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HIV Positive Individuals Protected By Americans With Disabilities Act
[Bragdon v. Abbott , Et Al (98 C.D.O.S. 5021)]
In this case, the United States Supreme Court was presented with a question of whether an individual who was HIV positive but showed no symptoms of AIDS was protected by the Americans with Disabilities Act (ADA).
The ADA defines disability as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." Ms. Abbott contended that being HIV positive precluded her from bearing children thus impairing a major life activity. The United States Supreme Court agreed.
Based on this decision, individuals who are HIV positive, but do not show symptoms of AIDS, will be entitled to all the protections provided by the ADA.
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Employer May Be Liable For Sexual Harassment Even In The
Absence Of Adverse Employment Consequences
[Burlington Industries, Inc. v. Ellerth (98 C.D.O.S. 5029)]
Burlington Industries is a large employer which employs 22,000 people in 50 plants throughout the country. Kimberly Ellerth was a sales person employed by Burlington in Chicago. Ted Slowik was her supervisor's supervisor. He was located in New York. Although, a Vice President, Slowik was characterized as not serving in an upper-level management position and as not having decision-or-policy- making authority.
Throughout Ellerth's employment with Burlington, Slowik commented about her body and made sexually offensive remarks and gestures to her. At one time he told her to "loosen up" and that "I could make your life very hard or very easy at Burlington." In fact, Ellerth suffered no adverse job consequences and was promoted. None of the threats to retaliate against her were carried out or fulfilled.
The question presented to the Supreme Court was whether Burlington could be held liable for Slowik's conduct in the absence of adverse employment consequences. Consistent with its holding in Faragher v. Boca Raton (See Legal Advisory LA98-27), the United Supreme court concluded that:
"An employer is subject to vicarious liability to a victimized employee or an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence . . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment."
As noted in Legal Advisory No. 98-27 the Supreme Court has provided a strong impetus to employers to adopt clear sexual harassment policies and to provide extensive and meaningful training to employees at all levels concerning sexual harassment in the work place.
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U.S. Supreme Court Rules That Employer Is Vicariously Liable For Discrimination, Including Sexual Harassment, Committed By Supervisor Unless Employer Can Show That It Took Reasonable Care To Prevent Harassment And That The Employee Did Not Take Reasonable Care To Prevent The Harmful Effects Of The Harassment Beth Ann Faragher worked as a part-time lifeguard for the City of Boca Raton. During her employment she was supervised by three male supervisors. Following her resignation, Faragher brought a lawsuit against the city and one of her supervisors claiming a sexually hostile environment resulting from offensive touching, lewd remarks and offensive comments concerning women made by male supervisors. More specifically, she alleged that one the supervisors said that he would never promote a woman to the rank of lieutenant and that another said, "date me or clean the toilets for a year."
Clearly, the acts of the male supervisors were not official City policy. Thus, the court was presented with the question of whether the City could be held liable for the act of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination.
The Court responded to this question by ruling "that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of a plaintiff victim."
The Court explained that to simply hold that the employer was vicariously liable for the subordinate's conduct would amount to "automatic liability." In order to preclude such automatic liability, the Court concluded that an employer should be permitted "to show as an affirmative defense to liability that the employer had exercised reasonable care to avoid harassment and to eliminate it when it might occur, and that the complaining employee had failed to act with like reasonable care to take advantage of the employer's safeguards and otherwise prevent harm that could have been avoided."
This case virtually mandates employers to institute aggressive training programs regarding sexual harassment in the work place. It also points out the need, consistent with previous cases, to take aggressive action when sexual harassment is discovered.
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Supervisor May Be Held Personally Liable For Sexual Harassment
But Not Employment Discrimination
Reno v. Baird (98 Daily Journal D.A.R. 7769)]
The California Supreme Court has resolved conflicting decisions between two California Courts of Appeal by concluding that employees may sue their supervisor for sexual harassment but not for employment discrimination or discharge in violation of public policy. It is important to note that this case pertains only to suits against supervisory employees and has nothing to do with employer liability.
Adopting the reasoning of one of the lower appellate court decisions, the California Supreme Court explained that there is a fundamental distinction between harassment, which is a type of conduct not necessary for a supervisor to perform his/her job, and business or personnel management decisions which could later be determined to have been discriminatory, which are inherently necessary in order for a supervisor to perform his/her job. More specifically:
". . .[ h]arassment consists of a type of conduct not necessary for performance of a supervisory job. Instead, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job.Discrimination claims, by contrast, arise out of the performance of necessary personnel management duties. While harassment is not a type of conduct necessary to personnel management, making decisions is a type of conduct essential to personnel management. While it is possible to avoid making personnel decisions on a prohibited discriminatory basis, it is not possible either to avoid making personnel decisions or to prevent the claim that those decisions were discriminatory.
Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes harassment. Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc. in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct. An individual supervisory employee cannot, however, refrain from engaging in the type of conduct which could later give rise to a discrimination claim. Making personnel decisions is an inherent and unavoidable part of the supervisory function. Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties."
While applying this doctrine will undoubtedly present challenges to the lower courts, it begins to establish a line of demarcation which has been unclear.
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Maximum Tax Sheltered Annuity Contribution Increased To $10,000 Per Year The Small Business Job Protection Act of 1996 (H.R. 3448) coupled the maximum contribution to a 403(b) Tax Sheltered Annuity (TSA) to the maximum contribution to 401(k) plans. Accordingly, for 1998, the maximum contribution to a TSA is increased from $9,500.00 to $10,000.00.
Generously provided by: Ralph D. Stern, General Counsel, Schools Legal Counsel Sexual Harassment Of Other Workers May Be Relevant
In Trial Of Sexual Harassment Claims
[Beyda v. City of Los Angeles (98 Daily Journal D.A.R. 7571)]A member of the staff of a Los Angeles City Counsel Member filed suit claiming that the Council member and other members of his staff sexually harassed her. At the trial she sought to introduce evidence that the same individuals had sexually harassed various other co-workers. The question of whether such evidence is relevant in a sexual harassment proceeding was answered by the court as follows:
" Harassment against others in the workplace is only relevant to the plaintiff's case if she has personal knowledge of it. Unless plaintiff witnesses the conduct against others, or is otherwise aware of it, that conduct cannot alter the conditions of her employment and create an abusive working environment. Stated another way, a reasonable person in plaintiff's position would not find the environment hostile or abusive unless that person had knowledge of the objectionable conduct toward others."One of the lessons to be learned from this case is the importance of fully investigating all incidents of sexual harassment including interviewing all witnesses.
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EEOC Issues Guidelines For Investigating Claims Of
Unlawful Employer Retaliation(EEOC Compliance Manual Section 8)
The Equal Employment Opportunity Commission (EEOC) has issued comprehensive guidelines to be followed in the investigation of complaints of unlawful employer retaliation.
The guidelines provide that the essential elements of a retaliation claim are: (1) the employee must have engaged in protected activity; (2) the employer must have taken adverse action against the employee; and (3) there must be a direct connection between the protected activity and the adverse action taken by the employer. Two kinds of activity are protected. The first is opposition to a practice made unlawful under those statutes which prohibit employment discrimination. Some examples include threatening to file a charge or complaint, alleging discrimination, complaining to anyone about discrimination against one's self or others, refusing to obey a directive because of a reasonably held belief that it is discriminatory or requesting reasonable accommodation.
Participation in a protected proceeding means the actual making of a charge, appearing as a witness or assisting someone else in investigating discrimination, or participating in any way in an employment discrimination proceeding. With respect to retaliation based on opposition to unlawful employment practices, the opposition must be reasonable and based on good faith. Participation in a covered proceeding is protected even if the allegations in the original complaint are determined to be invalid or unreasonable.
Examples of adverse actions or retaliation include denial of promotion, refusal to hire, denial of benefits, disciplinary action, threats, negative evaluations or harassment. Significantly, the guidelines also state that adverse action can occur after the employment relationship has ended. Examples of such retaliation include giving unjustified negative job references, refusing to provide a job reference or informing a prospective employer about the individual's protected activity. Of course, a negative job reference is not retaliatory conduct unless there is a retaliatory motive. The EEOC guideline describes the prohibition against retaliation as "exceptionally broad" including any discrimination which is likely to deter protected activity.
The guidelines note that direct activity of retaliatory motive is rare. Therefore, a violation can be established based on circumstantial evidence raising an inference of retaliation which the employer fails to rebut.
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Waiver Should Be Obtained For Individually Negotiated
Early Retirement Agreements
(29 CFR Part 1625)
In 1990 Congress amended the Age Discrimination in Employment Act (ADEA) to provide, among other things, a procedure for obtaining waivers of rights and claims under the Act. Since then the Equal Employment Opportunity Commission (EEOC) has been drafting implementing regulations which have now been published.
The ADEA, along with the Older Workers Benefit Protection Act (OWBPA) broadly prohibits discrimination on the basis of age in employment. The provisions of these Acts are highly technical and may apply under circumstances in which certain incentives are offered to older workers in exchange for giving up rights they might otherwise have.
While a brief summary of the waiver provisions follows, school employers are advised to consult with legal counsel or a third party administrator whenever an early retirement incentive plan is implemented - - particularly one which affects a single employee.
Any waiver must be " knowing and voluntary." Among the factors to be considered in determining whether a waiver meets this requirement are:
- The waiver must be in writing and drafted in plain language intended to be understood by the individual executing it.
- The advantages and disadvantages of entering into the agreement must be fairly presented.
- Specific references must be made to rights guaranteed by the ADEA.
- The individual must be advised of his/her right to consult with an attorney prior to signing the agreement.
- The waiver may not provide the release of claims arising after the date the waiver is executed.
- The individual signing the waiver must receive benefits in addition to anything of value to which the individual is already entitled. The person must be given a minimum of 21 days in which to consider the agreement or if it is part of an "exit incentive or an employment termination program offered to a group or class of employees" the individual must be given 45 days in which to consider the agreement.
- The individual must be given a seven-day period following the execution of the agreement during which the agreement may be rescinded.
As previously noted, this is a complex area and the purpose of this advisory is to alert school employers to proceed with caution.
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