Labor Employment Law Blog

By Evgenia Fkiaras

Following a trend by the Federal government to liberalize anti-discrimination laws in favor of employees, the Department of Labor Office of Federal Contract Compliance Programs ("OFCCP") has proposed regulations that would require employers who wish to keep their contracts (and subcontracts) with the Federal government to attempt to maintain a workforce where 7% of employees are individuals with disabilities. The public comment period for this proposal has just closed, and the OFCCP is now in the process of reviewing respondents' reactions.

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In a recent decision involving a deaf employee’s professed need for a sign language interpreter to understand and participate in mandatory departmental meetings, the Ninth Circuit Court of Appeals unanimously reaffirmed that pursuant to the Americans with Disabilities Act (“ADA”), an appropriate “reasonable accommodation” must be effective to enable a covered employee to enjoy equal benefits and privileges of employment.

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On August 27, 2009, the U.S. Equal Employment Opportunity Commission filed a putative class action against United Parcel Service, Inc. claiming the company’s 12-month leave of absence policy violates the Americans with Disabilities Act of 1990 (“ADA”).

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In an effort to satisfy customers and maintain a desired company image, many employers have dress and grooming policies. As a general rule, employers are legally allowed to establish reasonable dress and grooming requirements that serve legitimate business interests. However, two recent cases remind employers that there are limits on what grooming standards employers can impose on employees.

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A California Court of Appeal has ruled that an employee who used a company-provided scooter to move around a factory can sue for disability bias after the scooter broke and was not replaced by the employer.  This despite the fact that there was no medical evidence of disability, the employee worked for six months without using a scooter before deciding to retire, and the employee never told the Company he could not do the job without the scooter.

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The Ninth Circuit's holding in Gribben v. United Parcel Service illustrates the principle that employing an overly technical analysis to determine an employer’s obligations to its employees under the Americans with Disabilities Act ("ADA") is risky.  The ADA requires employers to provide reasonable accommodation to qualified individuals with disabilities, which it defines as “physical or mental impairment[s] that substantially limit[] one or more of the major life activities of [an] individual.”  The regulations interpreting this statute further explain that the requisite substantial limitation may be shown where a person is “[u]nable to perform a major life activity that the average person in the general population can perform.”

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The California Fair Employment and Housing Act ("FEHA") requires employers to engage in an interactive process to determine whether reasonable accommodation can be made to allow employees with known disabilities to perform the essential functions of their jobs. In Charles Gelfo v. Lockheed Martin Corporation, the California Court of Appeal held that an employer must engage in an informal interactive process with, and make reasonable accommodation for, an employee or applicant who is "regarded as" being physically disabled, even though the individual may not actually be physically disabled.
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A California Court of Appeal has opined that an employer's duty to accommodate religious observances extends to an employee's request to attend a three day religious convention even if attendance is not mandated by the religion. The Court found that the duty to accommodate was triggered so long as the desire to attend the convention, or other observance, flows from a sincerely held religious belief.

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