FEHA DISABILITY DISCRIMINATION UPDATE

California courts recently issued two decisions favorable to employers in defending disability discrimination/harassment cases brought under the California Fair Employment and Housing Act (“FEHA”).

Supervisory Behavior Related to Business and Management Duties Cannot Form the Basis For Harassment

In Roby v. McKesson Corp., a longtime employee who developed a panic disorder was terminated for violating the employer’s attendance policies when she was repeatedly absent due to her condition. After trial, the jury rendered a verdict for the plaintiff on all of her disability discrimination related claims. On appeal, the court overturned the verdict on the harassment claim, holding that there was insufficient evidence to support a finding that her supervisor harassed her.

What is a Hostile Environment?

After 25 years of employment with excellent performance and good attendance, the plaintiff developed a panic disorder, which caused her to pick at her arms and sweat profusely. In addition, the plaintiff’s panic medications caused her to exude a significantly unpleasant body odor. Soon after the plaintiff developed her panic condition, she was assigned a new supervisor. The new supervisor did not return the plaintiff’s greetings, referred to the plaintiff’s job as “a no brainer,” gave all of the other employees gifts, assigned the plaintiff to answer phones during the holiday party, frequently reprimanded the plaintiff in front of her co-workers, and made negative comments about the plaintiff’s body odor.

The court noted that actionable hostile work environment harassment requires conduct that falls outside the scope of the alleged harasser’s job duties, is not necessary to the business and personnel management of the employer, and is based in some manner on the victim’s protected status. In applying this standard, the court found that most of the alleged harassing behavior by the plaintiff’s supervisor fell within the supervisor’s legitimate business and management duties, i.e., selection of job assignments, reprimands regarding work performance, and even comments regarding body odor, as the plaintiff’s body odor disturbed her co-workers and affected the work environment.

The court found that while the supervisor may have disliked the plaintiff and showed no compassion for her condition, neither cold indifference nor lack of sensitivity toward a disabled employee is sufficient to establish a hostile work environment based on disability. Accordingly, the court struck down the jury’s verdict with respect to the harassment claim (although the plaintiff prevailed on her remaining claims).

Caution: Supreme Court to Decide

On April 18, 2007, the California Supreme Court granted review in the Roby case, which means that this decision may not stand. The Supreme Court has indicated that it granted review to determine whether a harassment claim under FEHA must be established entirely by reference to acts that have no connection with matters of business and personnel management.

By Itself, Assignment To Less Preferred Duties Does Not Constitute An Adverse Employment Action

In Malais v. Los Angeles City Fire Dept., a fire captain sued for disability discrimination when he was assigned to training duty instead of firefighting platoon duty after he lost his leg during a work-related accident. It was undisputed that the plaintiff was assigned to training duty because he had a prosthetic leg. The plaintiff alleged that his assignment was discriminatory because he could earn more overtime firefighting, and because he preferred firefighting, the platoon schedule, and the platoon environment.

The court held that the plaintiff had to show that his assignment to training duty had a detrimental and substantial effect on his employment, and noted that a change in working conditions that was merely different from what the employee wanted was insufficient to establish adverse action.

The court found that both training and platoon duty had equal pay and promotional opportunities. After being assigned to training duty, the plaintiff continued to receive promotions, and he admitted that additional promotional opportunities were available, but that he did not pursue them. Furthermore, although the plaintiff claimed he earned less overtime, there were many overtime opportunities on training duty that he failed to maximize. The court concluded that the plaintiff’s assignment to the less preferred training duty, by itself, was insufficient to establish adverse action. As there was no adverse action, the plaintiff’s claims for disability discrimination failed.

What Does This Mean For Employers?

Malais illustrates that not every employment action that an employee dislikes can give rise to a cause of action. The full impact of Roby remains to be seen.