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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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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.
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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.
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
Expansion of Leave
Administrative expansion
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
Expansion of Leave
Administrative expansion
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
Discuss TWENTY specific examples in the EEOC guidance
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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!
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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.
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
“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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
Many look much more like “accommodation” suggestions than ways to avoid unlawful discrimination.
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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”
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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.)
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
© 2010 RYBICKI & ASSOCIATES ׀ P.C.
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
© 2010 RYBICKI & ASSOCIATES ׀ P.C.