SEPTEMBER 2001

I.
LEGISLATIVE UPDATE

Labor Complaints

AB 1069 (Koretz) was recently signed into law by Governor Gray Davis. This bill amends Labor Code Section 98.7 and allows the State Labor Commissioner to reopen investigations of discrimination and workplace safety violation complaints subject to federal review. Specifically, the law, which will be effective January 1, 2002, provides that filing of a timely complaint with the U. S. Department of Labor concerning the dismissal of a safety or discrimination complaint by the State Labor Commission will stay the State's dismissal until a determination is reached by the U. S. Department of Labor.

Workplace Language Policies

Governor Davis is considering signing into law AB 800 (Wesson). If enacted, AB 800 would make it an unlawful employment practice for an employer to adopt or enforce a policy that prohibits the use of any language in the workplace unless the policy is justified by a business necessity.

II.
JUDICIAL UPDATE

Failed ADA Claim Likely to Succeed Under California State Law

A former Fresno Bee Reporter with carpal tunnel syndrome, who lost her federal Americans With Disabilities Act claim, may be heading back to court for another try under California's Fair Employment and Housing Act. Jacalyn Thornton's case is a perfect example why California employers must go further than other employers across the nation when dealing with disabled employees.

Thornton suffered work-related arm, shoulder, and wrist pain, and her doctor recommended severe limits on keyboarding and handwriting. After considering various accommodation options, including voice recognition technology and reassignment to different positions, the Bee concluded that Thornton's physical conditions made her unable to perform the job of reporter, and began the process of terminating her. Thornton filed suit alleging that the employer violated the ADA and FEHA by discharging her on the basis of her disability, which she claims substantially limited her in the major life function of working.

The federal district court determined Thornton was not disabled, because although Thornton had some moderate difficulties, they did not rise to the level of "substantial limitations" required by federal law. Thornton's level of education, her subsequent acceptance into the teaching pool at Fresno State, and her work as a freelance journalist during the litigation all tended to prove that the major life activity of working had not been substantially limited.

Thornton appealed the decision to the federal Ninth Circuit Court of Appeals. While the case was on appeal, the California legislature enacted AB 2222, which amended FEHA so that an individual need only be "limited," rather than "substantially limited," with respect to major life functions. The Ninth Circuit rejected Thornton's ADA claim, but remanded the case back to the lower court, so that a determination under AB 2222's lower standard could be reached. Thornton will likely win her state claim, as she simply needs to establish that she is limited in her ability to work.

Continuing Violations Expands FEHA's Limits

California employees won the right to hold employers liable, in certain circumstances, for discrimination that may have occurred years earlier. In Richards v. CH2M Hill, Inc., the California Supreme Court held that the California Fair Employment and Housing Act's one-year statute of limitations for filing discrimination suits does not apply if the employee can establish that the employer engaged in unlawful conduct over an extended period of time. In other words, employees do not necessarily have to file suit within one year of first suspecting that his or her rights were violated. Lachi Delisa Richards accused her employer, a nationwide engineering firm, of disability discrimination and harassment for failing to reasonably accommodate her from 1988 until her resignation in 1993. In that time, Richards, who has multiple sclerosis, and uses a wheelchair, had asked her supervisors several times for accommodations, many of which were ignored, denied, or implemented long after requested.

CH2M argued that Richards could only seek damages for actions which occurred during the one year period allowed by FEHA's statue of limitations. The trial court ruled that the company's conduct constituted a continuing violation, and allowed evidence of five years of alleged discrimination and harassment.

Following a six-week trial, the jury awarded Richards $925,000 in emotional distress damages and $476,000 in compensatory damages. The Supreme Court ultimately upheld the jury's decision, holding that the "continuing violation doctrine" tolls the statute of limitations if an employer's unlawful actions can be viewed as a "single, actionable course of conduct." Even then, the Court held, the alleged discriminatory acts must be similar, occur frequently, and not have acquired a degree of permanence that makes it clear to an employee that there will be no further effort to resolve the dispute. The Court opined that "the statute of limitations begins to run not necessarily when the employee first believes that his or her rights may have been violated, but rather either when the course of conduct is brought to an end, as by the employer's cessation of such conduct or by the employee's resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain."

If you would like to discuss these or any other employment law matters, please do not hesitate to contact any member of Klinedinst's Employment Law Department.