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Articles Posted in Disability Discrimination

About four years ago, a Fresno-area employment attorney wrote a blog post about a workplace discrimination case in which he gave employers the free advice of “don’t be a jerk.” OK, he didn’t use the work “jerk,” but you can still absorb the author’s main idea. Employers being jerks can do themselves quite a bit of damage. They may cause good employees to leave, good candidates to stay away and, sometimes, they may run afoul of discrimination law, particularly when it comes to creating hostile work environments. When you’ve faced that kind of harm on the job, it is important to reach out to an experienced Oakland employment attorney promptly.

Some employees may face bigger hurdles than others. For example, if you work for an employer that’s a church or church-related entity (such as, for example, a Catholic school,) then you may find that the discrimination you suffered at work may not be something upon which you can sue. That’s because of something called the “ministerial exception.” In fact, a U.S. Supreme Court case that recently ruled against two Catholic school teachers (one fired due to age and one fired due to disability,) made it clear just how broad the ministerial exception is.

Even when the hurdles are high, such as working for a religious employer, it is important to seek out capable legal advice before you decide to abandon your case. Sometimes, the totality of the facts in your case may still provide you with some legal avenue for compensation. For example, a religious employer may be able to demote or fire you because of your disability, age or sex, under the protection of the ministerial exception but, as one recent case illustrates, may be liable if it so humiliated, harassed and belittled you as to create a hostile work environment.

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The state of California set a bleak milestone recently as it surged past 300,000 total cases of coronavirus, according to Deadline. The Mercury News reported that, on July 12, Alameda County was added to the state’s coronavirus “watch list.” There are many ways that coronavirus can hurt you, but one way you perhaps hadn’t considered is the possibility of contracting the virus and recovering, only to be faced with discrimination when you try to return to work (due to your having had the virus.) If that happens to you, California’s discrimination laws may have options for you to obtain compensation for the harm you suffered, so be sure to contact an experienced Oakland employment attorney right away.

One of the first things that you should understand is, if you have tested positive, there are certain things that California’s law forbidding certain forms of workplace discrimination (the Fair Employment and Housing Act) says your employer can do, and other things it cannot.

The law in California may allow an employer to make certain demands of employees in order to ensure that the employee in question is capable of doing the job and doing it safely. These are called “fitness for duty” exams, and they typically include a medical examination and a certification from a medical professional that any safety concerns related to that worker’s return to the job no longer exist.

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Every employer has policies regarding employees with disabilities. For example, many employees whose disabilities leave them unable to do the essential duties of their job, even with an accommodation, may face termination. This may be legally allowable because discrimination law does not require employers to retain employees who cannot perform the mandatory duties of a position.

So, what happens when you lose your job because your employer made an honest mistake and erroneously misapplied its generally legal policies regarding employees with disabilities? Does the fact that the policy was legal and the mistake was a good-faith one mean that you cannot win a disability discrimination case in California? The answer, as it turns out, is “no, it doesn’t.” Bad faith or an illegal policy isn’t required. As always, be sure to consult an experienced Oakland disability discrimination attorney to find out how best to proceed if you’ve been fired due to your disability.

A recent case from Southern California offers very good news for workers who suffer discrimination, even when that discrimination comes in the form of a good-faith gaffe in applying a permissible policy. In that case, J.G. was a pharmaceutical sales rep for a major pharmaceutical company. Like many pharmaceutical sales reps, J.G.’s job required him to drive extensively.

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In California, there are several ways that an employer can fire an employee that is against the law. One of those ways is if the employer terminates the employee based on the employee’s disability without first engaging in a good faith effort to make a reasonable accommodation for that worker’s disability.

The Fair Employment and Housing Act demands that employers provide reasonable accommodations to employees with disabilities. The law requires many employers, in crafting the employee’s accommodation, to engage that employee in an “interactive process” in a good faith way. If you were fired because of your disability, and you were not afforded a reasonable accommodation or a good-faith interactive process, then you may be entitled to compensation and you should consult a knowledgeable Oakland employment law attorney promptly.

The case of paint store employee E.C. (Los Angeles Superior Court Case No. BC620114 / JAMS Arbitration Case No. 1210033499) is a good example. E.C.’s position required workers to lift heavy loads up to 72 pounds. The worker’s job application stated that she had a disability and could lift no more than 20 pounds.

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Sometimes, the key evidence in your employment discrimination case focuses a spotlight on what the employer wrongfully did or did not do. Other times, though, your disability discrimination case may turn on the acts you did or did not undertake prior to litigation. That’s because, while your employer is obligated to provide a reasonable accommodation for your disability, both your employer and you are required to engage in an interactive process in good faith for determining what that accommodation should look like.

An interactive process is when employer and employee exchange essential information directly with each other to work toward an appropriate accommodation. One of the ways in which you can succeed in a disability discrimination case is by demonstrating that you engaged in the interactive process in good faith, while your employer did not. For the assistance you need in clearing this and other evidentiary hurdles, be sure that you have the legal advice and advocacy you need from a knowledgeable Oakland employment attorney.

The issue of good faith participation in the interactive process was a key to the outcome of the disability discrimination case of M.M., a civil transportation engineer for the California Department of Transportation. The engineer suffered from both physiological and psychological disabilities, including a heart anomaly, anxiety and depression. The engineer’s disabilities allegedly impaired his ability to sleep properly and, as a result, limited his ability to concentrate and to deal with stress.

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When your employer has fired you, or has implicitly forced you out, based upon your disability or perceived disability, it is undeniably an incredibly difficult time for you. You may be uncertain about what to do. You may be uncertain about where to turn. If you’re in this challenging position, one of your first steps should be to protect your legal rights by contacting an experienced Oakland employment attorney.

C.R. was an employee who faced that type of circumstance in his case. C.R. was a deputy district attorney for a county in Southern California. In 2013, he began exhibiting symptoms of a serious neurological problem. The attorney asked his supervisor to transfer him to a different assignment, but the supervisor declined. He later asked not to be assigned any new cases while he was undergoing testing, but that request was also initially refused.

The attorney’s doctors concluded that he had a concussion syndrome related to his past military service and also suspected he had an autoimmune disorder. The employer asked for written documentation from the lawyer’s medical providers clinic, but the attorney didn’t provide it because the clinic he used “had a practice of not supplying such documentation.” When the paperwork did not come, the employer at first refused to engage in a good-faith interactive process.

Sometimes, even others’ unsuccessful discrimination actions can provide very helpful knowledge for those workers who follow. For example, a musician recently lost his age and disability discrimination lawsuit against his employer. However, the musician lost his case because of a very narrow free speech exception that protected his employer. The rest of his case, however, offered many of the pieces one might need in a discrimination complaint. When it comes to getting the most out of the rulings that precede your case, whether those workers won or lost, be sure you have an experience Oakland employment attorney who can provide you with up-to-date knowledge of the law.

The case involved G.S., a drummer in a rock-n-roll singer’s band. Although the singer had not scored a top-40 record or album since 1991, he and the band continued performing live concerts throughout the 2010s. Immediately after each concert, the drummer staffed a booth that sold t-shirts, CDs and other souvenirs.

In 2015, the singer laid off the drummer. The drummer was 61, had suffered a back injury and also was a cancer survivor, a condition which caused him to have incontinence. The singer sometimes referred to the drummer on stage as “Chemo the Drummer” and stated jokingly that the concert tour was sponsored by a brand of adult diapers used by people with incontinence.

For many people, applying for a job is a relatively stressful process, and sometimes starting a new job can be, too. Imagine in the midst of these stresses being asked to sign a document written in a language you don’t read or speak. For some Spanish-speaking workers in California, that is what happens to them when they seek or start a new job. If you sign an agreement to arbitrate your employment disputes as part of the application or “new hire” processes that is written in a language you don’t understand, you may not be able to assert that that language barrier created a lack of mutual assent and therefore a lack of a valid contract. You may, however, have other avenues to assert that the foreign-language arbitration agreement you signed is not enforceable. If you find yourself in this type of scenario in your discrimination or wrongful termination lawsuit, you should be sure you have skilled California employment counsel representing you in your case.

The above general scenario is essentially what happened in M.M.’s case. M.M. had worked at a nursing home as a certified nursing assistant for five years when she filed a complaint against her employer. Among other things, the CNA alleged that her employer had engaged in disability discrimination and constructive wrongful termination. In response, the employer sought to take the dispute out of the courts and move it into an arbitration hearing. The employer argued that it was entitled to arbitration because it and the CNA had signed an agreement, as part of her employment application, agreeing to arbitrate all disputes that arose in relation to M.M.’s employment. M.M. also signed two subsequent documents in which she agreed to be bound by the employer’s “Alternative Dispute Resolution Policy,” which included arbitrating all employment disputes.

The CNA’s argument was that the agreement was not valid. Specifically, she asserted that she read and spoke Spanish, did not understand spoken or written English, and never received a copy of any of the arbitration agreement documents in Spanish. Because she allegedly never understood any of the arbitration agreement documents she signed, she argued that there was no “meeting of the minds” that is necessary for a valid and enforceable contract. She also argued that enforcing the agreement was unconscionable because the entity seeking to enforce the agreement did not sign the document. (The entity took over control of the operations at the facility where M.M. worked three years after she started in 2011).

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