Summer 1999

laying off older workers with the intent to simply cut salaries did not constitute age discrimination. The new law provides that the use of salaries as a basis for selecting which workers should be terminated can constitute age discrimination.

According to the Bill's author, Senator Martha Escutia, nearly 15,000 claims of age discrimination have been filed in California in the last five years.

Employers should be aware that layoffs do not immunize an employer from lawsuits. Layoffs should be handled as carefully, and sometimes more carefully, than a termination for poor performance. Proper handling includes pre-planning, documenting and obtaining legal review.

Before the Court's decision, the Equal Employment Opportunity Commission ("EEOC") took the position that in analyzing whether an individual is disabled (i.e., whether an individual has a physical or mental impairment that substantially limits one or more of the individual's major life activities), an employer should not consider the beneficial affects of medication or medical treatments. Therefore, for example, someone who could see perfectly with eyeglasses should be assessed with no glasses or other lenses and a diabetic who can function normally with insulin should be assessed without the benefit of insulin treatment.

The Supreme Court disagreed. One Supreme Court case involved airline pilot applicants with severe nearsightedness that was correctable to 20/20 with proper eyeglasses. The employer excluded the applicants due to its standards regarding visual acuity. Another case involved a mechanic with hypertension who also had to operate commercial motor vehicles. Although his medication alleviated his high blood pressure, he could not obtain the needed health certification from the Department of Transportation to operate the motor vehicle. The individuals in both cases claimed protection under the ADA as persons with actual disabilities or persons regarded as having disabilities.

Ruling in favor of the companies, the Supreme Court found that the individuals did not have disabilities because the mitigating measures should be considered. In determining whether individuals have substantial limitations, they should be evaluated as they are while using mitigating measures. The Court noted that the EEOC's position would bring upwards of 160 million Americans into the ranks of persons with disabilities, whereas Congress stated when adopting the ADA that it was meant to protect a minority of 43 million Americans. According to the Supreme Court, "the 43 million figure reflects an understanding that those with impairments that are largely corrected by medication or other devices are not 'disabled' within the meaning of the ADA."

What does this mean to employers? In addition to limiting the universe of individuals who may sue under the Americans with Disabilities Act, it should limit the universe of individuals who companies should consider entitled to reasonable accommodations under the ADA. Federal law generally allows companies to require medical certification establishing whether or not someone has a disability before accommodating him/her (unless the disability is obvious). Employers should exercise their rights to receive this medical certification to discover whether or not they have an ADA obligation. Now with the Supreme Court decisions, because of a mitigating measure, the person is not substantially limited in any major life activity, she/he may not be protected by the ADA.

California employers should be aware, however, that although California law often follows federal precedent under the ADA, California has yet to adopt this federal definition of a disability.

When does harassment violate federal law?

• Harassment violates federal law if it involves discriminatory treatment based on race, color, sex (with or without sexual conduct), religion, national origin, age, disability, or because the employee opposed job discrimination or participated in an investigation or complaint proceeding under the EEO statutes. Federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. The conduct must be sufficiently frequent or severe to create a hostile work environment or result in a "tangible employment action," such as hiring, firing, promotion, or demotion.

• An employer is always responsible for harassment by a supervisor that culminated in a tangible employment action. If the harassment did not lead to a tangible employment action, the employer is liable unless it proves that 1) it exercised reasonable care to prevent and promptly correct any harassment; and 2) the employee unreasonably failed to complain to management or to avoid harm otherwise.

• An individual qualifies as an employee's "supervisor" if the individual has the authority to recommend tangible employment decisions affecting the employee or if the individual has the authority to direct the employee's daily work activities.

• A "tangible employment action" means a significant change in employment status. Examples include hiring, firing, promotion, demotion, undesirable reassignment, a decision causing a significant change in benefits, compensation decisions, and work assignment.

• This might occur if a supervisor fires or demotes a subordinate because she rejects his sexual demands, or promotes her because she submits to his sexual demands.

• Employers should establish, distribute to all employees, and enforce a policy prohibiting harassment and setting out a procedure for making complaints. In most cases, the policy and procedure should be in writing.
• Small businesses may be able to discharge their responsibility to prevent and correct harassment through less formal means. For example, if a business is sufficiently small that the owner maintains regular contact with all employees, the owner can tell the employees at staff meetings that harassment is prohibited, that employees should report such conduct promptly, and that a complaint can be brought "straight to the top." If the business conducts a prompt, thorough, and impartial investigation of any complaint that arises and undertakes swift and appropriate corrective action, it will have fulfilled its responsibility to "effectively prevent and correct harassment."

• An employer's anti-harassment policy should make clear that the employer will not tolerate harassment based on race, sex, religion, national origin, age, or disability, or harassment based on opposition to discrimination on participation in complaint proceedings. The policy should also state that the employer will not tolerate retaliation against anyone who complains of harassment or who participates in an investigation.

• The employer should encourage employees to report harassment to management before it becomes severe or pervasive.
• The employer should designate more than one individual to take complaints, and should ensure that these individuals are in accessible locations. The employer also should instruct all of its supervisors to report complaints of harassment to appropriate officials.
• The employer should assure employees that it will protect the confidentiality of harassment complaints to the extent possible.

• An employer should conduct a prompt, thorough, and impartial investigation. The alleged harasser should not have any direct or indirect control over the investigation.
• The investigator should interview the employee who complained of harassment, the alleged harasser, and others who could reasonably be expected to have relevant information. The Guidance provides examples of specific questions that may be appropriate to ask.
• Before completing the investigation, the employer should take steps to make sure that harassment does not continue. If the parties have to be separated, then the separation should not burden the employee who has complained of harassment. An involuntary transfer of the complainant could constitute unlawful retaliation. Other examples of interim measures are making scheduling changes to avoid contact between the parties or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.

• If an employer determines that harassment occurred, it should take immediate measures to stop the harassment and ensure that it does not recur. Disciplinary measures should be proportional to the seriousness of the offense. The employer also should correct the effects of the harassment by, for example, restoring leave taken because of the harassment and expunging negative evaluations in the employee's personal file that arose from the harassment.

• An employer should correct harassment that is clearly unwelcome regardless of whether a complaint is filed. For example, if there is graffiti in the workplace containing racial or sexual epithets, management should not wait for a complaint before erasing it.
• An employer should ensure that its supervisors and managers understand their responsibilities under the organization's anti-harassment policy and complaint procedures.
• An employer should screen applicants for supervisory jobs to see if they have a history of engaging in harassment. If so, and the employer hires such a candidate, it must take steps to monitor actions taken by that individual in order to prevent harassment.
• An employer should keep records of harassment complaints and check those records when a complaint of harassment is made to reveal any patterns of harassment by the same individuals.