“Honest Belief” Defense Rule in Employment Discrimination Works!

September 26, 2016

A recent court decision shows that the “honest belief” rule continues to be a potent defense for employers responding to employment discrimination claims. And conversely, it continues to be a frustrating hurdle for employees to overcome in proving unlawful discrimination in the workplace.

Specifically, the honest belief of a Wal-Mart manager was found to protect the company from an age discrimination lawsuit.

The Honest Defense Belief

Under this rule, employers may avoid a finding that the claimed nondiscriminatory reason was pre-textual if the employer can establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.

Wal-Mart’s policy calls for an employee to be terminated after four disciplinary actions. Wal-Mart’s Store manager followed the company policy when he fired an employee after she violated a workplace safety rule that resulted in a fourth disciplinary action.

The employee claimed that she learned from a colleague several weeks before she was fired that her manager and the assistant managers wanted her fired and “they were looking for any excuse they could find to get her out of the store.” In this regard, the employee appeared to have argued that some of the disciplinary actions should have been disregarded because they were the product of unlawful discrimination by her managers.

But, Wal-Mart won in District Court after the judge granted its motion for summary judgment. In doing so, the judge found that the employee lacked direct evidence that her termination was based on her age and she failed to establish that Wal-Mart’s stated nondiscriminatory reason for her discharge was pre-textual.

The Court of Appeals agreed with the dismissal. Turning to the Wal-Marts’ “honest belief,” the court concluded that the employee failed to present evidence calling into question Wal-Mart’s stated reason for terminating her, namely, her accumulation of four disciplinary actions.

Further, the Court concluded that even if such evidence was produced, Wal-Mart was still entitled to summary judgment under the honest belief rule.

The employee reasonably relied on the fact that she had three prior written warnings in her record. The employee reviewed each of those warnings, and her manager terminated her employment based on her coaching history and her violation of Wal-Mart safety standards. Even if the employee might have concluded upon closer review that one or more of her warnings should have been removed from her record, ‘an employer’s pre-termination investigation need not be perfect in order to pass muster under the rule’(according to the court).

Responding to and Establishing the Honest Belief Defense

The honest belief rule is especially difficult to overcome for plaintiff employees. To overcome an employer’s assertion of the honest belief rule, there must be evidence that demonstrates the employer did not ‘honestly believe’ in the proffered non-discriminatory reason for its adverse employment action.” But the honest belief rule continues to apply even if the employer’s conclusion is later shown to be mistaken, foolish, trivial, or baseless.

But this doesn’t mean that invoking the honest belief is a free pass for employers; courts routinely refuse to apply the defense where the employer fails to take reasonable action relative to the pre-termination/discipline investigation. Keep in mind, such reasonableness comes down to whether management disregards a readily available and potentially critical piece of information concerning the employee. In other words, if the decisional process was not reasonably informed then the honest belief rule should will probably not apply.

On a closing note, if you are going to have such a “four and out policy” just remember if you fail to do it consistently, you will probably not be successful with your defense.


Black Hairstyles Are Protected Under Race Discrimination? The Court Rules…

September 19, 2016

Well, this is one for the employer! Dress code policies include hairstyles. A case in point.

The EEOC asked the 11th Circuit to determine whether banning an African-American employee from wearing dreadlocks constitutes race discrimination.

In a lengthy decision that discusses the very concept of race, the court answered the question “no”.

The case involved an African-American customer service representative who, after being conditionally hired for a position with Catastrophe Management Solutions, was told that she would have to cut her dreadlocks to comply with the company’s grooming policy. When she refused, it rescinded the offer. The EEOC argued that a rule against dreadlocks constitutes race discrimination because dreadlocks, which are physiologically and culturally associated with people of African descent, act as a proxy for race.

In disagreeing with the EEOC, the court delved into a philosophical debate over whether race is a biological or cultural construct. It concluded it was the former:

We would be remiss if we did not acknowledge that, in the last several decades, there have been some calls for courts to interpret Title VII more expansively by eliminating the biological conception of “race” and encompassing cultural characteristics associated with race. …

Assuming that general definitional consensus could be achieved among those who advocate the inclusion of culture within the meaning of “race,” and that courts were willing to adopt such a shared understanding of Title VII, that would only be the beginning of a difficult interpretive battle, and there would be other very thorny issues to confront, such as which cultural characteristics or traits to protect. …

Even if courts prove sympathetic to the “race as culture” argument, and are somehow freed from current precedent, how are they to choose among the competing definitions of “race”? How are they (and employers, for that matter) to know what cultural practices are associated with a particular “race”? And if cultural characteristics and practices are included as part of “race,” is there a principled way to figure out which ones can be excluded from Title VII’s protection?

The case is a fascinating read on whether protected classes are tied to biological characteristics or societal constructs, and whether what is considered immutable can change with changes in ethos. Or, to look at this question differently, should the law fix the definition of “race” in 1964 when Congress passed Title VII, or should that definition change over time with changes in society? While I believe the 11th Circuit correctly decided Catastrophe Management Solutions on the specific issue of whether this employer used dreadlocks as a proxy for race discrimination, how one ultimately comes down on the more general issue of biology versus culture will also dictate whether you believe, for example, sex discrimination covers LGBT issues. There are no easy answers to these deep philosophical questions. I am just happy that the courts are open to the debate.

Note: Do not forget we are having a free seminar Tuesday, September 20, 2016 (“The Impact of Domestic Terrorism on the Workplace”). The times are 9 a.m., 1 p.m. and 3 p.m. in Pasadena, CA. Contact: rosa@pottsandassociates.com

Associational Disability Discrimination

September 12, 2016

Last week a case (Castro-Ramirez v. Dependable Highway Express) that could have national recognition, was issued by the California Court of Appeal. In its’ opinion, the Court held that the plaintiff-employee had a colorable claim for disability discrimination against his employer – even though the plaintiff-employee was not himself disabled.  Instead, the employee’s son was disabled with a kidney condition that required daily dialysis treatments.  His father, who was employed by DHE, was the only one in the family trained to administer the dialysis treatments.  Based on his daily need to assist with treating his son, the employee requested to work an early shift that allowed him to be home in the evening to administer the dialysis.  For some time, the company accommodated the employee’s scheduling request.  Then, a new supervisor took over and assigned the employee to work a later shift.  The employee refused, stating that it interfered with his ability to be home for his son’s treatments.  The employee was fired for refusing to work as scheduled.

The facts.

Plaintiff sued DHE for disability discrimination, failure to accommodate, failure to prevent discrimination, and related claims under California law.  The trial court granted summary judgment in favor of DHE.  Among other things, the trial court ruled that DHE did not have a duty to accommodate the disability of an employee’s family member.  Rather, the Fair Employment and Housing Act’s (“FEHA”) accommodation requirement provides only that employers must reasonably accommodate the needs of “applicants or employees” with disabilities.  The trial court held that the discrimination-based claims similarly failed because there was no evidence that DHE terminated plaintiff’s employment based on some sort of discriminatory animus due to the fact that he had a disabled son.  Instead, the evidence showed that the employer terminated the plaintiff’s employment because he refused to work his assigned shift.  Plaintiff appealed the adverse ruling as to the disability discrimination, failure to prevent discrimination, retaliation, and wrongful termination in violation of public policy claims.  Plaintiff abandoned his failure to accommodate claim.

Earlier this year, in April, the Court of Appeal issued a decision reversing the trial court’s ruling and holding (1) that an employer has a duty to reasonably accommodate an employee who is associated with a disabled person; and (2) California recognizes a claim for associational disability discrimination.  The Court of Appeal further held that plaintiff was entitled to a trial on his claims.  DHE petitioned for a rehearing by the Court of Appeal, which was granted.

Last week, the Court of Appeal issued its decision on rehearing.  The Court of Appeal retreated somewhat from its prior decision, this time holding that it “need not decide” whether California requires employers to reasonably accommodate the needs of an employee who is “associated” with a disabled person.  The Court held that it was not necessary to determine this issue because the plaintiff had abandoned his failure to accommodate claim.  Nonetheless, despite having expressly stated that it was unnecessary to decide the issue, the Court of Appeal offered up that this was an unsettled issue in California and that the provisions of FEHA, when read together, could be interpreted to require accommodation of employees who are not themselves disabled, but who are associated with others (e.g. family members) who are disabled.  The Court even went so far as to suggest that the term “disabled” in FEHA includes employees who are associated with a disabled person.

The Court of Appeal then held that regardless of whether or not employers have a duty to accommodate an employee who is associated with a disabled person, California certainly recognizes a claim for associational disability discrimination – meaning that employers cannot discriminate against an employee for having a disabled family member.  The Court held that plaintiff had presented sufficient evidence to support a finding of associational discrimination.  Specifically, plaintiff presented evidence that despite expressly informing his new supervisor of his need to be home in the evenings, his supervisor scheduled him to a shift that started at noon – later than he had ever been scheduled to work before.  The supervisor did this even though he had scheduled at least 8 other drivers for earlier shifts that day and then lied to the plaintiff about the reason for denying plaintiff an early shift.  The supervisor told plaintiff that a customer had complained about plaintiff’s service and that was the reason plaintiff was being taken off of that early route.  This apparently was false.  According to the Court, this type of evidence could support a finding that the supervisor simply did not want to deal with plaintiff’s “distraction” associated with having a disabled family member.  For these reasons, the Court of Appeal held that plaintiff’s claims should not have been summarily dismissed by the trial court and that plaintiff was entitled to have a jury decide the claims.

Justice Grimes authored a strong dissent, arguing that the majority opinion is wrong and that the trial court properly granted summary judgment in favor of DHE.

Expect this case to be headed toward a petition for review before the California Supreme Court.  In the meantime, employers should be aware that there is some uncertainty in California as to whether an employer has a statutory obligation to provide reasonable accommodation to employees with disabled family members.  Employers may wish to seek legal counsel in managing accommodation requests in such circumstances.  Additionally, employers are reminded that there are now two published California cases (this case and an earlier case entitled Rope v. Auto Chlor) holding that California recognizes a claim for associational disability discrimination.

Employers should use caution in managing and/or terminating employees who have raised issues concerning having a family member with a disability (i.e. as impacting the employee’s job performance and/or attendance).


Update: New Laws

September 5, 2016

Throughout the year, I have reported on various employment-related bills being considered by the California legislature.  The 2016 legislative session came to a close recently, so I am now reporting on the final status of bills that were passed by both houses and have now been sent to the Governor for either approval or veto.  The Governor has until September 30, 2016 to approve or veto these bills.

SB 654 (Parental Leave):  This bill, which is an amended version of a prior bill, would require an employer having 20 or more employees within 75 miles of a requesting employee’s worksite to provide the employee up to 6 weeks of leave to bond with a new child, if the employee has at least 12 months of service and has worked at least 1250 hours in the 12 months preceding the request for leave.  The employee would be entitled to use accrued paid time off during the leave and the employer would be required to continue group health benefits during the leave.  The employee would be entitled to an upfront guarantee of reinstatement to the same or comparable position.  The provisions of the bill would take effect January 1, 2018.

AB 1066 (Overtime Pay and Meal and Rest Periods for Agricultural Workers):  This bill would eliminate the present exemption from meal and rest break and day of rest requirements for agricultural workers, and would also phase in overtime compensation requirements for these workers over the next several years.  For employers with more than 25 employees, agricultural workers would have to be paid time and one-half for hours worked in excess of 9.5 hours per day and/or 55 hours per week, starting January 1, 2019.  Starting January 1, 2020, the time and one-half obligation would kick in for all hours worked in excess of 9 hours per day or 50 hours per week.  Starting January 1, 2021, the time and one-half obligation would kick in for all hours worked in excess of 8.5 hours per day or 45 hours per week, and starting January 1, 2022, time and one-half would be owed for all hours worked in excess of 8 per day or 40 per week.  For employers with 25 or fewer employees, the overtime phase-in schedule does not start until January 1, 2022.

AB 1676 (Equal Pay Act Amendment):  This bill would amend California’s Equal Pay Act, which makes it unlawful to pay employees of one gender less than similarly situated employees of the opposite gender, to expressly provide that prior salary alone is not alone a sufficient justification for a pay disparity.

SB 1001 (Remedy for Unlawful Verification of Right to Work):  This bill would add section 1019.1 to the Labor Code and make it an unlawful employment practice for an employer, in the course of verifying an applicant’s authorization to work, to (1) request more or different documents than are required under federal law; (2) refuse to honor documents tendered that on their face appear to be reasonably genuine; (3)  refuse to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work; or (4) attempt to reinvestigate or re-verify an incumbent employee’s authorization to work using an unfair immigration-related practice.  An applicant or employee subject to a violation of this law would be entitled to file a complaint with the Department of Labor Standards Enforcement and recover a penalty of $10,000 per violation.

AB 2337 (Notice to Employees of Rights Concerning Domestic Violence/Stalking):  Existing California law provides employees who are victims of domestic violence, sexual assault, and/or stalking the right to take time off from work in specified circumstances.  This bill would require employers to give new employees written notice of these rights upon hire and to provide notice to current employees upon request.  The bill would also require the Labor Commissioner, by July 1, 2017, to prepare a form notice for employers to use to satisfy the requirements of this new law.  Employers would not be required to comply with the notice requirements until the Labor Commissioner’s notice form is posted on its website.

SB 1063 (Equal Pay – Race and Ethnicity):  This bill would expand California’s equal pay law, which currently prohibits wage differentials based on gender, to prohibit employers from paying employees of one race or ethnicity less than similarly situated employees of a different race or ethnicity.

This bill, if passed, is going to open another avenue of litigation. It would mean that an employer can be challenged on the differences employees are paid even if there is a legitimate reason for the difference in pay.

SB 1167 (Heat Illness Prevention for Indoor Workers):  This bill would require Cal-OSHA, by January 1, 2019, to propose standards for heat illness prevention for indoor workers, similar to those currently in place for outdoor workers.

Note: Due to the number of individuals signing up for the free seminar, “The Impact on Domestic Terrorism on the Workplace” we are moving the date from September 14 to the 20th and offering a morning & afternoon session. Email rosa@pottsandassociates.com