Employment Non-Discrimination Act

The Employment Non-Discrimination Act ("ENDA") is a bill proposed proposed in Congress to prohibit discrimination against employees because of their sexual orientation or gender identity. This protection would extend to all non-religious employers in the country. Specifically, the act would (from HRC):

• Extends federal employment discrimination protections currently provided based on race, religion, sex, national origin, age and disability to sexual orientation and gender identity;
• Prohibits public and private employers, employment agencies and labor unions from using an individual's sexual orientation or gender identity as the basis for employment decisions, such as hiring, firing, promotion or compensation;
• Provides for the same procedures, and similar, but somewhat more limited, remedies as are permitted under Title VII and the Americans with Disabilities Act; and
• Applies to Congress and the federal government, as well as employees of state and local governments.

California's FEHA has similar protections for both groups, so implementation here won't change much. In fact, 12 states and the District of Columbia have protection for sexual orientation and gender identity:  California, Colorado, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington; and nine other states have laws protecting sexual orientation only: Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Nevada, New Hampshire, New York, and Wisconsin. 23 additional states have lesser protections for sexual orientation.

In order to ensure company policies, procedures, and practices are not violative of the FEHA (or the ENDA), contact us for an audit. If you've been accused of unfair discrimination based on sexual orientation or gender identity, or any other protected category, time is of the essence, contact an attorney immediately.

False Premise

All logical arguments are based up initial assumptions, called premises, that must be true for the conclusion to be true. Because the initial assumptions must not be false, it is important to scrutinize propositions before stating them. For instance:

a. All dogs have rabies. (Premise.)
b. Franco is a dog. (Premise.)
c. Franco must have rabies. (Conclusion.)

Because (a) is demonstrably false, (c) has to be false under this argument. That doesn't mean the dog mentioned does not have rabies, but it means you cannot prove it as above.

The real world is rife with this particular logical fallacy. Often this occurs when people make assumptions about the world around them. In the employment context, this might come up in wage claims, when employees extrapolate what happened to other to themselves; or in discrimination claims when employees make assumptions about another person because of their sex or race.

Watch out for these in all drafting employment manuals, too. Assumptions about how and when people act can accidentally impose contract law onto a poorly crafted handbook.

Effects of Disability are the Same as the Disability

That employers must be sensitive to the needs of their disabled employees has been clear for most savvy companies. However, what about that employees related-but-detrimental conduct? So long as it flows from the disability, it is part of the disability, and therefore protected. Gambini v Total Renal Care, 486 F.3d 1087 (9th Cir 2007): conduct resulting from the disability is part of the disability and cannot serve as the basis for termination any more than the disability itself.

In that case, Gambini's performance was slipping, and she blew up (swearing and being disruptive) during a negative performance evaluation. When it was revealed that a psychological disorder may have been the cause, the employer sent her to the hospital for an evaluation. There, she was re-diagnosed with bi-polar disorder, and went out on medical leave.

Meanwhile, the employer decided that the conduct exhibited by Gambini during the meeting made it impossible for her to work there, and terminated her. She sent a note explaining that the complained-of behavior was a consequence of her disability, and asked to be reinstated. The employer refused.

The Court ruled that, "the jury was entitled to infer ...that her 'violent outburst' [was] a consquence of her bipolar disorder, which the law protects as part and parcel of her disability. In those terms, if the law fails to protect the manifestations of her disability, there is no real protection in the law because it would protect the disabled in name only."

For more on disability litigation, contact me.