developmentsdevelopments in reasonable … in reasonable accommodation and ... different treatment...

RYBICKI & ASSOCIATES ׀ P.C.LABOR AND EMPLOYMENT ATTORNEYS

Developments in Reasonable Accommodation and Developments in Reasonable Accommodation and Caregiver Obligations

© 2010 RYBICKI & ASSOCIATES ׀ P.C.

Expansion of Leave Pre‐1990:

Very few specific or implied leave requirements

Di i i ti hibit d f i l di Discrimination prohibited for many reasons, including sex and gender

Accommodation was not a regularly accepted EEO concept


Expansion of Leave Pre‐1990:

G t d l li it d t f ll d fi d Guaranteed leave was limited to a few well‐defined situations

Workers’ compensation – California required reinstatement following extended occupational disability leaves

Military, short‐term reserve and national guard duty

Jury duty, etc.Jury duty, etc.


Expansion of Leave 1990:

Congress passes Americans with Disabilities Act

Contains no specific guaranteed leave requirements

Introduces the concept of “accommodation,” which obviously civers at least some leavessome leaves

But limited to specific:

Qualified disabled individuals and applicants Qualified disabled individuals and applicants

Larger employers (first 25, then 15 employees)

Need only provide any reasonable accommodation, not the employee’s preferencey p y , p y p


Expansion of Leave 1993:

Congress passes Family Medical Leave Act

Guarantees leave and benefits for up to twelve weeks per year

Generally requires reinstatement at the end of leave Generally requires reinstatement at the end of leave

But limited to well‐defined:

d l d Serious medical conditions

Employers with 50 or more employees in a 75‐mile radius

Set 12‐week annual entitlement


Expansion of Leave

Administrative expansion

DOL attempts to expand FMLA leave by formal regulationg

Example: Leave starts only when approved; delayed certification extends an employee’s total leave certification extends an employee s total leave

This and similar regulations struck by the Supreme Court as expansion of the rights crafted by Congress – 12 weeks is 12 expansion of the rights crafted by Congress 12 weeks is 12 weeks.


Expansion of Leave


EEOC attempts to expand ADA by informal guidance and enforcement policiesp

Introduces concepts such as an “interactive process,” providing leave as a reasonable accommodation, and holding future , gopen positions for disabled employees on leave

Concepts usually introduced by internal enforcement p y yguidelines not subject to rulemaking procedures


Expansion of Leave


Though not regulations, the EEOC enforcement guidelines were often accompanied by “FAQs” or g p y Qemployer guidance

Not generally subject to appeal or attack for failure to Not generally subject to appeal or attack for failure to follow rulemaking procedures

Nonetheless often adopted by courts and state agencies


Expansion of Leave California

EEOC t d t d b th D t t f F i E l t d EEOC concepts adopted by the Department of Fair Employment and Housing, and the Fair Employment and Housing Commission, in enforcement

EEOC publications used by California courts to guide FEHA litigation

EEOC concepts – such as interactive process requirements – adopted by the state legislature as part of the Fair Employment and Housing Actthe state legislature as part of the Fair Employment and Housing Act

Thus – EEOC positions successfully guided state and federal courts, and were adopted as part of California’s substantive law


Expansion of Leave

Irony

California Supreme Court expressly rejected the DLSE’s opinion letters and enforcement manual as “underground regulations” (Tidewater)regulations (Tidewater)

Yet the EEOC’s enforcement guidance and “technical assistance” were used again and again by state courts to g g yinterpret the FEHA

They became “underground regulations” themselvesy g g


Expansion of Leave

The Outcome

Progressive DOL regulations were rejected and failed to g g jexpand FMLA …

h l d h d h d l f While EEOC guidance shaped the development of state and federal substantive law, agency enforcement and judicial interpretationj p


Today’s EEOC The EEOC knows how successful its informal guidance has been

Tends to put effort into development (hearings, accepting industry and labor comments, etc )industry and labor comments, etc.)

Has taken aggressive and “controversial” positions on EEO laws such as the length of leaves required as reasonable laws, such as the length of leaves required as reasonable accommodation under the ADA

B t h th EEOC k it ’t b i d But when the EEOC speaks, it can’t be ignored


Recent Guidance 2007:

EEOC i f t id dd i EEOC issues a new enforcement guidance addressing “Unlawful Disparate Treatment of Workers with Caregiving Responsibilities”

Provides “guidance regarding unlawful disparate treatment under the federal EEO laws of workers with caregiving responsibilities”

Vi t / li /d / i i ht l View at: www.eeoc.gov/policy/docs/caregiving.html


Recent Guidance

EEOC notes that:

“federal EEO laws do not prohibit discrimination against caregivers per se” but that caregivers per se but that

some “discrimination against caregivers” might be so e d sc at o aga st ca eg ve s g t beunlawful


Recent Guidance Examples:

Different treatment of female vs male caregivers Different treatment of female vs. male caregivers Gender role stereotyping of working women Pregnancy discriminationg y Discrimination against male caregivers Discrimination against women of colorC i i d h ADA Caregiver stereotyping under the ADA

Hostile work environment (harassment) RetaliationRetaliation


Recent Guidance Category examples:

Different treatment of female vs male caregivers Different treatment of female vs. male caregivers Gender role stereotyping of working women Pregnancy discriminationg y Discrimination against male caregivers Discrimination against women of colorC i i d h ADA Caregiver stereotyping under the ADA

Hostile work environment (harassment) RetaliationRetaliation


Discuss TWENTY specific examples in the EEOC guidance


Problems with the Guidance

Problem: the EEOC’s position is not tied directly to any “caregiver” lawany caregiver law

Identifies good examples of stereotypical discrimination g p yp(“men should not take time off for caregiving”)

But this type of discrimination is already illegal But this type of discrimination is already illegal

The guidance may suggest an “accommodation” requirement that does not currently exist!


Problems with the Guidance Problem: the EEOC almost admits that the guidance is an “underground” regulation

The purpose of this document is to assist investigators, employees, and employers in i h th ti l l t d i i ff ti i i ht l f ll assessing whether a particular employment decision affecting a caregiver might unlawfully

discriminate on the basis of prohibited characteristics

While “not intended to create a new protected category,” it may do just that

Also accompanied by “Best Practices” suggesting ways to avoid unlawful discrimination

Similar to prior documents such as the ADA “Technical Assistance Manual”

Failure to follow its standards may be used by courts – and will probably be used by the California DFEH – as evidence of discrimination

May create a new “floor” in the same way as prior publications under the ADA

… and may lead to new state regulations, enforcement policies or law.


“Best Practices” 2009:

EEOC issues “Employer Best Practices for Workers with Caregiving Responsibilities”

Provides practices “employers may adopt to reduce the chance of [violations and] remove barriers to equal employment opportunity”

Vi t / li /d / i b t ti ht l View at: www.eeoc.gov/policy/docs/caregiver‐best‐practices.html


Employer Guidance “Best Practices” include general suggestions such as:

Maintain an EEO policy that defines “relevant terms, including ‘caregiver’ and ‘caregiving responsibilities’”

Include examples of unlawful caregiver discrimination in EEO Include examples of unlawful caregiver discrimination in EEO policy

Train managers on potential caregiver discrimination issuesg p g

“Identify and remove barriers to re‐entry” for individuals who have taken leaves of absence due to caregiving responsibilities or “other personal reasons”personal reasons


Specific Best Practices

The guidance also contains many specific suggestions i d i l l ll not tied to any particular law at all

E l Examples

“Flexible” schedules and overtime policies Flexible schedules and overtime policies Reduced‐time options Reassignment to other positionsReassignment to other positions


Many look much more like “accommodation” suggestions than ways to avoid unlawful discrimination.


The Future

Past is prologue –

2009 “best practices” introduce more accommodation suggestions than the 2007 guidancegg 7 g

Possible effect (intent?): Movement to develop caregiver accommodation requirementsaccommodation requirements

This would model development of ADA principles such as the “interactive process”


The Present Be Aware! Caregiver discrimination is now on attorney radar screens.

Increased use in litigation (war story)

Reliance on other California laws:

“associational” discrimination (disability, age, medical) Retaliation for Kin‐Care use Retaliation for FMLA/CFRA use


The Present Follow some of the EEOC’s suggestions?

Identify caregiver situations in policies? Supervisor training?

M i i i f fl ibl h d l ? Monitor opportunities for flexible schedules? Create policies addressing return to work, retaliation and complaint reporting?

As always: Monitor new developments!

Agency enforcement Relevant state and federal court decisions New legislation Follow industry groups professional associations etcFollow industry groups, professional associations, etc.

Get involved.

Consider providing comments on proposed legislation and regulationp g p p g g Assist industry groups (support, amicus participation, etc.)


Richard C. RybickiRYBICKI & ASSOCIATES ׀ P.C.

7 Fourth Street Suite 5 Petaluma CA 949527 Fourth Street, Suite 5, Petaluma CA 94952975-B First Street, Napa CA 94559

(707) 222-6361

r bickiassociates comwww.rybickiassociates.com


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