Applicants for employment who are over forty years old often face numerous hurdles to finding new employment. In addition to facing stereotypes about their longevity and energy levels, applicants may find themselves searching for a job in a market that has completely changed since the last time they looked for a new job. Recently, the U.S. Court of Appeal for the Eleventh Circuit created yet another obstacle for older job applicants, holding that older job applicants cannot bring a discrimination suit for failure to hire based on a theory of disparate impact under the federal age discrimination law. Villareal v. R.J. Reynolds Tobacco Co., Pinstripe, Inc. No. 15-10602 (11th Cir. Oct. 5, 2016)  Disparate impact cases challenge practices, rules or policies that result in a disproportionate negative impact on a protect group- here, employees over 40.

The court ruled that only employees, not applicants could bring a disparate impact claim under the Age Discrimination in Employment Act (ADEA). The court rejected a class action lawsuit against the company that had a hiring policy targeting applicants who were “2-3 years out of college”, “adjusts easily to changes.” In screening applicants, the policy was to “stay away from” applicants who had been “in sales for 8-10 years.” While this decision was a hard blow to applicants in the Eleventh Circuit, it does not apply once and employee is hired and becomes an employee.

Fortunately, this bad decision does not affect California employees. The Ninth Circuit, which covers California, and California state courts have a much more employee (and applicant)-friendly approach. In California, applicants may still bring an ADEA claim by alleging that a hiring practice disparately affects a protected class. In fact, there is a similar class action case for age discrimination in hiring currently pending in the Northern District Court of California. So far, two attempts by Google to defeat class certification for those claims have not been successful. Robert Heath, et al. v. Google Inc., Case No. 5:15-cv-01824.

In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ____ (2015), the United States Supreme Court delivered the straight-forward rule that employers “may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

In this case, Abercrombie refused to hire a young Muslim woman named Samantha Elauf to work in one of its retail clothing stores because Ms. Elauf wore a headscarf. Abercrombie suspected that Ms. Elauf wore the headscarf in observance of her Muslim faith and simply did not want to accommodate the headscarf, claiming that it would violate the company’s “look policy” (which forbade employees from wearing “caps”). When the EEOC sued Abercrombie on behalf of Ms. Elauf for failing to make a reasonable accommodation for her religion, the company defended its actions by arguing that it did not “actually know” that the headscarf was a religious practice – it merely suspected that it was a religious practice. In other words, Abercrombie made the absurd argument that even though it actually believed the headscarf was a religious practice and the headscarf was indeed a religious practice, the company should nevertheless be allowed to discriminate against Ms. Elauf because Ms. Elauf did not specifically tell the company that the headscarf was a religious practice.

Luckily, the U.S. Supreme Court did not buy Abercrombie’s argument. The Court’s decision makes it clear that employers may not make employment decisions that are “motivated” by someone’s actual religious beliefs or practices, nor can it refuse to make reasonable accommodations for such religious practices, by simply claiming that the employee (or job applicant) never explicitly confirmed the company’s suspicions regarding their religious beliefs or practices.

In a blow to those employees who suffer from stress and anxiety caused by abusive employers, a California Court of Appeals has determined that “an employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a mental disability” under the California Fair Employment and Housing Act.

In Higgins-Williams v. Sutter Medical Foundation 14 C.D.O.S. 5245 (2015), the Plaintiff worked as a clinical assistant for Sutter Medical Foundation for nearly three years when her doctor diagnosed her as having “adjustment disorder with anxiety” and further reported that her disabling condition was “stress when dealing with her Human Resources and manager.” Plaintiff took a medical leave and as soon as she returned, her manager gave her a negative performance review (the first negative review she received at Sutter). On her second day back at work, Plaintiff’s manager grabbed her arm and yelled at her and Plaintiff suffered a panic attack as a result. Plaintiff’s doctor put her on another medical leave.

Plaintiff then requested, as a reasonable accommodation for her disability, to transfer to a different department so that she could work under a different supervisor and manager. Although Plaintiff and her doctor repeatedly reported to Sutter that she could return to work in a different department under a different manager, Sutter instead chose to extend her medical leave and eventually terminated her employment rather than accommodate her with a transfer.

Weaving v. City of Hillsboro, 763 F.3d 1106 (2014), involved an Oregon police officer who claimed he was terminated because of his disability, ADHD (Attention Deficit Hyperactivity Disorder). The jury found for Officer Weaving, however the Ninth Circuit took his verdict away, claiming that ADHD may have limited his life functions of working and/or interacting with others, but it did not “substantially” limit those life functions.

It is a pity for Officer Weaving that he didn’t work in the State of California, where a disability is defined by statute as “limiting” rather than “substantially limiting” a life function. California employees can certainly argue that ADHD is a disability because of this difference. California employees should always file a charge with the Department of Fair Employment and Housing (the DFEH, the California state agency governing employment discrimination and/or have the Equal Employment Opportunity Commission (the federal agency) cross-file the claim with the DFEH.

December 9, 2014 Jody I. LeWitter

Plaintiff Thomas claimed that her employer retaliated against her because she exercised her free speech rights and spoke out on matters of public concern. Thomas v. County of Riverside, 763 F.3d 1167 (2014).

The lower court dismissed her case, characterizing her claims as “petty workplace gripes”. Ms. Thomas claimed that her employer retaliated against her by removing her from an unpaid position, removing her from a teaching assignment, and denying her a previously granted vacation.

Discussing the importance of First Amendment rights, including the fact that these rights might be chilled by the types of retaliatory actions the County of Riverside took against Ms. Thomas, the Ninth Circuit reversed the dismissal of the case, emphasizing the importance of free speech for public employees.

Franchise relationships are growing and need to be regulated. It is important to make both the franchisor and the franchisee responsible for the companies they create and/or run and/or set up. According to California Law, a franchisee is granted the right to engage in a business under a plan or system set up by the franchisor (think McDonald’s where 80% of its restaurants are operated under franchise agreements, with 20% operated as a chain).

The California Supreme Court put its thumbs on the wrong side of the scale of justice by letting Domino’s Pizza off the hook for sexual harassment because it was a franchisor. Patterson v. Domino’s Pizza, 60 Cal.4th 474 (2014). Nonetheless, it is important that any victim of sexual harassment or wrongful conduct look carefully at the franchise contract and the conduct of the franchisor and franchisee before determining whether or not to sue a franchisor.

The California Supreme Court found that, on the facts of this case, Domino’s didn’t have control or the right to control hiring/firing/discipline/employment policies and practices, and thus wasn’t responsible for the sexual harassment of Ms. Patterson. The Court declared that since Domino’s doesn’t have the right to control, or actual control, over these things, an employee can only sue the franchisee for sexual harassment. In reality, the Court decided it just didn’t want to make the franchisor responsible – regardless of the facts or the law.

Can one even imagine that FedEx would so boldly claim that its drivers are independent contractors rather than employees because it lacks sufficient control over the drivers’ work? Really? Walk the streets anywhere and you’ll see the ubiquitous FedEx driver, in the exact same trucks, wearing identical uniforms and delivering packages in the exact same manner.

It is hard to even dream that FedEx would claim these folks aren’t entitled to the protections of employment status. But they did. In order to save a buck, FedEx came up with an elaborate justification to claim their employees aren’t employees.

FedEx claimed and claims that because they make these drivers buy their own trucks and scanners, pay for their own uniforms, and work whatever hours are necessary to get FedEx’s work done, the drivers aren’t employees. They claim that because they require their drivers to sign contracts saying they are independent contractors, that they are independent contractors. They claim just because they say FedEx can’t control the “manner or means” of getting the job done, regardless of what they do, that these drivers are independent contractors.

In a partial victory for California workers, the State’s highest court ruled, in Salas v. Sierra Chemical Co. 59 Cal.4th 407 (2014) that employers cannot get away with violating California employment laws just because they find evidence, after being sued, that their mistreated employees did not have proper authorization to work in the United States.

Mr. Salas had worked for Sierra Chemical Company in California for a number of years when he injured his back on the job. The company had regular seasonal layoffs during the winter months and typically hired back its workers when business picked up in warmer months. However, after Mr. Salas injured his back on the job and filed a worker’s compensation claim, Sierra refused to hire him back until he could prove that he no longer needed an accommodation for his back injury. Mr. Salas filed a lawsuit against Sierra for unlawful employment discrimination and retaliation under the California Fair Employment and Housing Act, claiming that Sierra refused to accommodate his physical disability and refused to rehire him in retaliation for having filed a worker’s compensation claim.

Almost two years after refusing to rehire Mr. Salas, and just before the case was set to go to trial, Sierra found evidence that Mr. Salas had used someone else’s social security number when he applied for the job many years ago. The company argued that this information provided a complete justification for throwing his lawsuit out of court. Fortunately, the California Supreme Court disagreed, ruling that an employer cannot completely escape from liability just because it later finds evidence, after a lawsuit is filed, that the employee it discriminated against was undocumented. The Court explained that employers would otherwise have a powerful incentive to hire undocumented workers, or “look the other way” when hiring employees they suspect to be undocumented, because they would be able to violate any number of California’s employment laws (including minimum wage laws, child labor laws, and anti-discrimination laws) and get away with it if any of their undocumented employees ever sued to enforce the law.

In the Iskanian v.CLS Transportation Los Angeles, LLC decision, the California Supreme Court addressed the enforceability of employer-employee arbitration agreements in various circumstances. Iskanian v.CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014). The case delivered some good news – but mostly bad news – for employees and attorneys who represent employees.

First, as to the bad news: Boxed in by the United States Supreme Court’s decisions on the enforceability of arbitration agreements, including in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2001), the California Supreme Court upheld the validity of class action waivers in employment arbitration agreements. The California Supreme Court overruled its previous decision in Gentry v. The Superior Court of Los Angeles, 42 Cal.4th 443 (2007) as preempted by the Federal Arbitration Act (“FAA”).

The California Supreme Court also addressed the recently developed and powerful argument that class action arbitration waivers are invalid under the National Labor Relations Act (“NLRA”), which provides workers with a right to collective organize and advocate for their rights as a group. That argument gained traction with the National Labor Relations Board (“NLRB”) in its recent decision in D.R. Horton. Inc., 357 NLRB No. 184 (2012), but unfortunately the California Supreme Court sided with the Fifth Circuit’s contrary opinion in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). The California Supreme Court held that the NLRA was no obstacle to the applicability of the FAA to support the enforcement of class action waivers in arbitration agreements.

In Thursday’s unanimous Lane v. Franks decision, the Supreme Court decided that public employees are protected from retaliation when they testify in court about misconduct they observe on the job. Lane v. Franks, 134 S.Ct. 2369 (2014).

Edward Lane was a director of a program for underprivileged youth operated by Central Alabama Community College (CACC). As the director, he conducted an audit of the program’s expenses and found that an Alabama State Representative, Susan Schmitz, was on the payroll even though she was not doing any work for the program! Mr. Lane terminated Ms. Schmitz’s employment and soon thereafter, Ms. Schmitz was indicted on mail fraud and theft charges. Mr. Lane testified against Ms. Schmitz about why he fired Ms. Schmitz and Ms. Schmitz was ultimately convicted.

After he testified, Mr. Lane, along with 28 other employees were terminated. But a few days later, CACC’s president Steve Franks hired back everyone other than Mr. Lane and one other employee. Mr. Lane filed a lawsuit claiming that Mr. Franks had violated his First Amendment rights by firing him in retaliation for testifying against Ms. Schmitz.