FEHC Limits Claims For Failure To Take Reasonable Steps, and Restricts Employer Access To Employee Medical Information

This alert summarizes two recent decisions from the California Fair Employment and Housing Commission, DFEH v. Lyddan Law Group, LLP and DFEH v. Avis Budget Group, Inc.

DFEH v. Lyddan Law Group, LLP

On October 21, 2010, the California Fair Employment Housing Commission (“FEHC”) found that, although the Department of Fair Employment and Housing (“DFEH”) may prosecute a stand-alone claim for an employer’s failure to take all reasonable steps to prevent discrimination and harassment from occurring under California Government Code Section 12940(k), the cause of action does not exist as an independent claim for private civil litigants.

The FEHC reached the question of whether an independent violation of subdivision (k) exists after it found that the complainant, a paralegal, had not been subjected to unlawful harassment or retaliation.  Even in the absence of unlawful harassment or retaliation, the FEHC determined that the law firm had violated subdivision (k) of Section 12940 by failing to take reasonable steps to prevent discrimination or harassment from occurring.  The law firm did not have a written anti-harassment policy, did not conduct training for its managers or employees in harassment or discrimination prevention, did not have an employee handbook, and further failed to conduct an independent investigation into the claims brought by the paralegal.

The FEHC also concluded that the DFEH could pursue this claim on behalf of an individual as a proper exercise of its police powers, but there is no private right of action in civil proceedings between private litigants.  To this end, the FEHC found the imposition of only a non-monetary remedy against the employer to be appropriate and ordered the managing partner of the firm to undergo sexual and racial harassment prevention training at his own expense.

What Lyddan Law Group Means For Employers

Although the holding in Lyddan Law Group provides employers with an argument that no private independent claim exists for failure to prevent harassment and discrimination from occurring where there is no actionable underlying claim for harassment or discrimination, the FEHC itself still retains the power to enforce such an independent claim.

The decision is thus a reminder to all employers of the importance of properly training managers and employees on avoiding harassment, discrimination and retaliation in the workplace.  In addition to conducting regular training, the decision emphasizes the need for employers to adopt proper anti-harassment and discrimination policies and procedures.

DFEH v. Avis Budget Group, Inc.

On October 19, 2010, the FEHC decided DFEH v. Avis Budget Group, Inc.  In this matter, plaintiff Reed was a former customer service representative who worked at Budget Rent a Car.  In 2001, doctors diagnosed Reed with major depression and Post Traumatic Stress Disorder.  From 2001 to 2006, Reed took several leaves of absence and worked reduced hours without incident.  Reed did not provide Budget with the reasons for her leaves of absence or a reduced schedule.  In June 2006, Reed’s physician recommended that Reed should limit her work day to six hours a day for a period of one year.  Reed presented a doctor’s note to Budget explaining for the first time that she suffered from depression and bipolar disorder.  Budget immediately placed Reed on an involuntary indefinite unpaid leave.

In late June, Budget requested that Reed provide more information regarding her condition and asked her doctor to complete Budget’s “Accommodation Request Form.”  The form required Reed’s physician to disclose, among other things, Reed’s medical diagnosis, prescribed medications, whether the condition was temporary or permanent, and the effect of her medical condition on major life activities.  The form also asked Reed to authorize access to her present and past medical records and for permission for Budget to speak with Reed’s physician.  Reed’s physician completed the Accommodation Request Form, but Reed declined to authorize additional access to her medical records.  Because Budget did not believe the information on the Accommodation Request Form was accurate, and because Reed declined to release her medical records, Budget asked Reed to submit to an examination by a doctor chosen by Budget.  After objecting to the request on several occasions, Reed ultimately agreed to the examination.

Budget returned Reed to work on a part-time, 16-hour a week (4 hours a day) schedule in November 2006.  Budget then laid Reed off the next month, stating that it did not have enough work for her, even though the company had given her assurances that her 16-hour weekly work schedule would not affect her seniority.

The FEHC held that Budget failed to engage in the interactive process in a timely manner and did not reasonably accommodate Reed.  It also held that placing Reed on a five month unpaid leave and unilaterally assigning her to a 16-hour schedule with reduced pay was unlawful.  More importantly, the FEHC concluded that Budget’s Accommodation Request Form was overbroad, invasive, and impermissibly required disclosures that were not necessary in light of the information provided by Reed’s doctor.  Finally, the FEHC held that Budget failed to take all steps necessary to prevent discrimination and treated Reed disparately to others based on her disability.

What Avis Means For Employers

Avis demonstrates that employers must be careful not to request too much information regarding an employee’s medical history when handling a request for a reasonable accommodation.  Additionally, employers should strive to timely engage in the interactive process, and attempt to provide reasonable accommodation as quickly as possible.

For more information, please contact the Seyfarth attorney with whom you work, or any Labor and Employment attorney on our website.