Employment Law Case Notes

• Citation: Vol. 30 No. 4
• Publication year: 2016
• Author: By Anthony J. Oncidi

Employment Law Case Notes

By Anthony J. Oncidi

Anthony J. Oncidi is a partner in and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and management in all areas of employment and labor law. His telephone number is (310) 284-5690 and his email address is aoncidi@proskauer.com. (Tony has authored this column without interruption for every issue of this publication since 1990.)

Employee Who Needed to Assist Disabled Son Could Proceed With "Associational Disability Discrimination" Claim

Castro-Ramirez v. Dependable Highway Express, Inc., 246 Cal. App. 4th 180 (2016)

Luis Castro-Ramirez sued his former employer, Dependable Highway Express, Inc., for "associational disability discrimination," failure to prevent discrimination, retaliation under the California Fair Employment and Housing Act (FEHA), and wrongful termination. Castro-Ramirez's son requires daily dialysis, which Castro-Ramirez must administer to him. Castro-Ramirez's supervisors had for several years scheduled his work so that he could be at home to administer the dialysis, but that accommodation changed when a new supervisor took over and terminated Castro-Ramirez's employment for his refusal to work a shift that did not permit him to be home in time to administer the dialysis. The trial court granted the employer's motion for summary judgment, but the court of appeal reversed (over a strong dissent), holding that the FEHA creates a duty on the part of the employer "to provide reasonable accommodations to an applicant or employee who is associated with a disabled person," not just to applicants and employees who themselves are disabled (citing Cal. Gov't Code § 12926(o) ("physical disability" includes a perception that a person is associated with a person who has, or is perceived to have, a disability)). See also Wallace v. County of Stanislaus, 245 Cal. App. 4th 109 (2016) (Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013), does not require an alleged victim of disability discrimination to prove "animus or ill will," only that discriminatory intent was a substantial motivating factor/reason for the employer's actions).

Employees Are Entitled to Suitable Seating If the Tasks Being Performed Reasonably Permit Seating

Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1 (2016)

In this opinion, the Supreme Court of California answered three questions posed to it by the United States Court of Appeals for the Ninth Circuit, involving suitable seating requirements under California law. Section 14(A) of IWC Order No. 7-2001 (Cal. Code Regs., tit. 8, § 11070) states: "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." Section 14(B) states: "When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties." The federal district court concluded that Sections 14(A) and (B) were mutually exclusive and that the former applied when an employee was actually engaged in work, while the latter applied when an employee was not actively working. The Supreme Court of California answered the Ninth Circuit's questions as follows: (1) If the tasks...