The Ninth Circuit Court of Appeals recently published a decision, providing guidance to courts on when hugs and other forms of unwanted touching cross the line and become sexual harassment. Victoria Zetwick began working for Yolo County as a correctional officer in 1988. In 1999, Edward Prieto was elected as the county sheriff and became Ms. Zetwick’s supervisor. Ms. Zetwick alleged that between 1999 and 2002, Mr. Prieto subjected her to over a hundred unwelcome hugs. On one occasion, Ms. Zetwick says that Mr. Prieto, apparently in an effort to congratulate her on her recent marriage, kissed her partially on the lips. She complained about the incident but her supervisors did not forward her complaints for investigation. Ms. Zewick claimed that in 2010, she was working with another female employee and Mr. Prieto reached out to hug her. He then stopped himself and said that people had complained so he would not hug her. But then he proceeded to hug her and the other female officer anyway.

Ms. Zetwick claimed that Mr. Prieto didn’t reserve his hugs just for her. She claimed that over the years she saw Mr. Prieto hug and kiss dozens of female employees but never saw him hug male employees – instead, he would shake hands with male employees. On another occasion, Ms. Zetwick claimed that Mr. Prieto repeatedly asked another female employee how much she weighed until she answered and looked at the employee in a sexually suggestive manner. Mr. Prieto claimed that he did in fact hug male employees and that all of his hugs were just friendly hugs. The County also claimed that Ms. Zetwick hugged other male co-workers and joked about Mr. Prieto’s hugs.

Several courts have determined that hugs and kisses on the cheek do not always create a sexually hostile work environment. However, in determining whether such conduct does crease a hostile work environment courts must look at who engaged in the conduct, the conduct itself, the number of times the conduct occurs, and the period of time over which the conduct occurs. Importantly, the conduct must be severe or pervasive- it does not have to be both.

Recently, it has been reported that campaign staffers were encouraged to “dress like women” while on duty. So what can an employer require of an employee with respect to his or her appearance?

Employers are permitted to set grooming standards for their employees and those standards may differ for male and female employees. Over ten years ago, the Ninth Circuit Court of Appeals held that: “Grooming standards that appropriately differentiate between the genders are not facially discriminatory.” Jespersen v. Harrah’s Operating Co., Inc. (9th Cir. 2006) 444 F.3d 1104. In that case, Harrah’s casino had a “personal best” grooming policy that required all of its bartenders to wear the same uniform but had differing policies for men and women with respect to their hair, hands and face. Men were not permitted to wear make-up and were required to have short hair and women were required to wear eye and face make up. A female employee objected to the requirement that she wear make-up and brought a claim under Title VII for sex stereotyping. In a controversial opinion, the Court determined that the differences in the grooming policy for men and women did not give rise to a sex stereotyping claim.

However, Courts have found violations of Title VII where there is an “undue burden” placed on female employees that is not placed on male employees. In Frank v. United Airlines (9th Cir. 2000) 216 F.3d 845, female flight attendants were required to stay under a certain weight in order to keep their jobs. Many of the female flight attendants went on extreme diets to try to make the cut but were unsuccessful in losing enough weight. As a result, they were disciplined and/or terminated. The Court held that United’s policy had a disparate impact on women and was facially discriminatory because it applied less favorably to women than to men.

In 2012, the Supreme Court gave employers and employees alike clear rules about meal and rest breaks in California. The Court held that employers were required to provide employees with a full, thirty minute, uninterrupted meal period if an employee works five or more hours in a shift. In the alternative, employees may agree – in writing – to waive their meal period. If the employer does not abide by those rules, it is liable to the employees for premium pay. The Court also warned employers that they were not allowed to pressure employees into working through their meal break.

But what about rest breaks? In California, employees who work a typical eight-hour shift are entitled to two paid ten minute breaks. The California Supreme Court just clarified that the rest breaks must be duty free and employers cannot require their employees to remain “on-call” during their rest breaks.

In Augustus v. ABM Security Services, Inc. (2016), 2 Cal.5th 257, the plaintiffs were security guards who worked for a security company. The employer required its employees to keep their pagers and radio phones on at all times, including during rest breaks. The employees were also required to remain vigilant and respond to calls when needs arose. The Court held that the employees were entitled to duty-free rest breaks – that employers “must relieve employees of all duties and relinquish control over how employees spend their time.” The Court also held that employers could not require their employees to remain “on-call” during their rest breaks because if an employee is on call, they do not have the freedom to use their rest break for their own purposes.

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.