Discrimination in the Face of Worker's Compensation Claims

The California Workers’ Compensation Act provides for no-fault remedies to injured workers, on the theory that eliminating the proof requirements attendant on ordinary injury claims will save the parties time, money, and headaches. However, the Workers’ Compensation Appeals Board (“WCAB”) has jurisdiction over two other types of cases which do not fit the “no-fault” mold on which the workers’ compensation system was established: liability for discrimination associated with workers’ comp claims, and serious and willful violation of the workers’ comp laws. This article outlines what employers may expect as respondents in a Labor Code § 132a discrimination cases.

A. Procedure Before the WCAB

Because of the reduced proof requirements in workers’ compensation benefits matters, procedure before the WCAB is designed to be “simple, informal, and expeditious.” (See http://tinyurl.com/CalWCAB, for published rules.) The WCAB “need not adhere to rules of pleading and practice binding ordinary courts. … This liberal way of proceeding, free of formalism, applies also to the manner in which parties are brought under the jurisdiction of the commission … although the constitutional requirements of due process must be observed.” (DeMartini v. Industrial Acc. Com. (1949) 90 Cal.App.2d 139.) As a result, for instance, employers’ dispositive motions, such as demurrers and motions for summary judgment, are rarely heard by WCAB judges.

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.

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.

Older Workers May be Better Workers

In our increasingly service and knowledge based economy, the older worker may have an advantage. As reported on NPR, it turns out that the brain peaks in middle age, seeing the bigger picture more rapidly, increasing processing speed with increased "white matter" (a fatty substance coating the usual grey matter), and increased problem solving -- all in the older brain.

As reported by Barbara Strauch in her book The Secret Life of the Grown Up Brain, some stereotypical age-related symptoms do occur, such as forgetfulness, but these are not necessarily as bad as they seem, and can be combated by challenging the brain every day, preferably through real intellectual rigor, such as making a cogent argument to an intellectual adversary (makes me glad I'm a lawyer).

So, employers are bound by the stick presented by the ADA and the ADEA (outlawing age discrimination in employment), but are may find that hiring and retaining older workers is better for the bottom line.

Correlation Does Not Equal Causation

Among the easiest logical errors to fall into is to assume that because one event followed another, it must have been caused by the first. That logical fallacy is called post hoc ergo propter hoc, or "after which therefore because of". However equally fallacious is the idea that because two events are related in some way, there is a causal relationship between them, which is, instead cum hoc ergo propter hoc ("with this, therefore because of this"). Succinctly stated:

Because two events are related in some way, does not imply a causal relationship among them.

This sort of fallacy comes up in medical practice and statistics frequently. However, it is just as frequently seen in legal arguments -- and as I've mentioned before, we must keep a watchful eye on both our own arguments and those of our opponents.

I often see the case where because an employee was terminated, and because the employee happens to be a member of a protected class (race, sex, disability, etc.), the employee will raise a discrimination claim. The law and logic require more to prove discrimination (as it turns out, the law and logic share a lot in common): there must also be a correlation between the protected class and the termination. The law calls this correlation a nexus ("bond"), defined as a connection between two things.

As always, contact me for more information.

Requests for Charitable Donations to Subcontractors via Work Email?

When making requests of others -- especially your employees -- on behalf of charities, make it clear you have no way to know that they made such donations, and insulate any business implications (such as the involvement of your customers or subcontractors in the charity) from the request. -- Randy Cohen, the Ethicist.

Workers' Compensation Discrimination under Labor Code § 132a

When an employee files for workers' compensation benefits, they may also file a companion case under Labor Code section 132a. Called "workers' compensation discrimination," or 132a case, these are separate matters from the discrimination case under the law.

Under Labor Code § 132a, the employee must show that he or she was (a) had a negative employment action taken against him or her because of the industrial injury, and that (b) he or she was singled out for such treatment. This is often shown by the closeness in time of the industrial injury and the termination or demotion. Unlike the underlying workers' comp case, this is not an open-and-shut matter where all that must be determined is the dollar value.

Because of this, your workers' compensation carrier is probably not your best advocate in solving the 132a matter. Besides, workers' comp insurance rarely covers discrimination cases, since they are considered "intentional" or "willful." Therefore, to resolve the case, find an attorney experienced in worker's compensation discrimination cases -- who can hone in on the records and witnesses to make the best case either before or at the hearing, and can develop defenses with an eye toward speedy resolution.

Cases before the Workers' Compensation Appeals Board ("WCAB") are often party-driven, meaning the attorneys set the pace and schedule for evidence-gathering and hearings. Because workers' compensation cases often take a long time to resolve, employees often leave their discrimination matters on the back burner. But employees can be entitled to back-pay, exposing employers to a possible unwelcome surprise once the employee becomes "permanent and stationary."

Cook Brown has the expertise to know when to pursue 132a cases, and when to let them sit.