The Role of the “Same Decision” Defense in California Whistleblower Cases

Whistleblower cases in California differ from discrimination cases in several important ways. Among other things, Section 1102.6 of the Whistleblower Protection Act (found in the California Labor Code) provides that where an employee proves by a preponderance of the evidence that discriminatory activity was a “contributing factor” with respect to a discriminatory act, the burden then shifts to the employer. To meet that burden, the employer must prove by “clear and convincing evidence” that the action would have occurred for other legitimate, independent reasons even if the employee had not engaged in protected activity. The statute reads as follows:

In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.

This framework, and particularly the requirement that an employer present “clear and convincing evidence,” can be useful for employees in situation in which a number of factors contributed to the decision to discipline or terminate. Furthermore, in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, the California Supreme Court concluded that Section 1102.6 provides the “applicable substantive standards and burdens of proof for both parties in a section 1102.5 retaliation case” and is a “complete set of instructions” for adjudicating whistleblower retaliation claims.

The language in Section 1102.6 does not appear in California’s Fair Employment and Housing Act (FEHA), where many of the state’s antidiscrimination laws are found. For this reason, the FEHA treats cases in which there are multiple reasons for an adverse employment action differently. In Harris v. City of Santa Monica (2013) 56 Cal.4th 203, the California Supreme Court held that in FEHA claims, where an employer proves that it that it would have made the same decision even absent any unlawful discrimination, the employee is still entitled to declaratory or injunctive relief, as well as attorneys fees. However, to trigger this situation, an employee must show that discrimination was a “substantial factor” in the underlying decision.

In other words, the first step of the analysis under FEHA discrimination claims is more challenging for the employee to meet because the employee must show what discrimination was a “substantial factor” as opposed to just “a contributing factor”. However, once the employee meets that burden, in the second step of the FEHA analysis he or she can prevail even if there were other reasons for the discriminatory act.

A recent decision of the First District of the California Court of Appeal clarifies the ramifications of the difference in language between the FEHA and the Whistleblower Protection Act. In Ververka v. Department of Veterans Affairs (May 22, 2024), A163571, the plaintiff tried to import the Harris framework into a whistleblower case. The court rejected that effort, holding that the “same decision” defense is a complete defense in cases brought under the Whistleblower Protection Act.

If you have questions about your rights at work-either a whistleblower or under California’s Fair Employment and Housing Act, please feel free to contact the attorneys at Hunter Pyle Law and to make use of our free and confidential intake process. We can be reached at (510) 444-4400 or at inquire@hunterpylelaw.com.

Employers Can Deny Disability Accommodations if They Can Prove Undue Hardship

In California, employers are required to provide reasonable accommodations for applicants or employees with physical or mental disabilities.[1] However, an employer does not have to provide accommodations if those accommodations create an “undue hardship” for the employer.[2] California law defines undue hardship as an “action requiring significant difficulty or expense.”[3]

When deciding whether a potential accommodation would create an undue hardship for the employer, courts consider the five factors laid out in the Fair Employment and Housing Act:

(1) The nature and cost of the accommodation;
(2) The finances of the facilities involved in the potential accommodation, the number of employees at the facility, and the impact of the potential accommodation on the facility;
(3) The overall finances of the employer, the overall number of employees, and various factors regarding its facilities;
(4) The employer’s operations; and
(5) The location of and relationship between facilities.[4]

In Atkins v. City of Los Angeles, the Second District Court of Appeal held that the City of Los Angeles failed to demonstrate that reassigning five injured recruit police officers to light-duty administrative work would cause the city undue hardship.[5] The city argued that keeping recruits on light-duty would have caused undue hardship because the recruits doing light-duty work were holding onto salaried positions that were intended for officers that would go out on the street within six months of entering the police academy.

The Atkins court was unpersuaded because the city did not offer any evidence to show that the expense of hiring additional recruits would have been “too great in relation to the city’s financial health” or that the city could not have met its public safety needs if plaintiffs remained in the light-duty program or if the city could not have hired additional recruits.[6] The court clarified that the employer must do more than simply assert it has economic reasons to reject a plaintiff’s proposed reassignment to demonstrate undue hardship. The employer must also show why and how those economic reasons would affect its ability to provide a particular accommodation.[7]

There is no single formula for determining whether a requested accommodation will result in undue hardship. Whether a particular accommodation will create an undue hardship for an employer is determined on a case-by-case basis and is “a multi-faceted, fact-intensive inquiry.”[8] Ultimately, the employer has the burden of demonstrating that an otherwise reasonable accommodation would result in an undue hardship on the employer.[9]

If you have questions about your disability rights in the workplace in California, please feel free to contact the experienced attorneys at Hunter Pyle Law for a free and confidential initial intake. We can be reached at inquire@hunterpylelaw.com or at (510) 444-4400.

References

[1] Gov. Code § 12940, subd. (m)(1).

[2] Gov. Code § 12940, subd. (m)(1).

[3] Gov. Code §12926, subd. (u).

[4] Gov. Code §12926, subd. (u).

[5] Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 732, as modified on denial of reh’g (Mar. 13, 2017). 

[6] Id. at 735.

[7] Id. at 734.

[8] Id. at 733.

[9] Id., citing Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 126–127; Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 972.

The EEOC’s Guidelines on an Employer’s Duty to Provide Reasonable Accommodation

Under Title I of the Americans with Disabilities Act (“ADA”), individuals with disabilities are entitled to changes in the work environment, also known as “reasonable accommodations,” that allow them to enjoy the same opportunities in the workplace as individuals without disabilities.  The Equal Employment Opportunity Commission (“EEOC”) has issued enforcement guidance on reasonable accommodations under the ADA in order to address the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodations.  Highlights from the guide are set forth below. 

Employers are under a statutory duty to provide a reasonable accommodation in order to remove barriers that could prevent individuals with disabilities from performing jobs they might otherwise be able to do. These barriers might be physical or procedural.  However, an employer does not have to provide personal use items that an employee needs both on and off the job as a reasonable accommodation.  Examples of this include wheelchairs and hearing aids.   

Employers must provide accommodations whether employees with disabilities work part-time, or are considered probationary.  

There are three types of reasonable accommodations under the ADA: 

1. Modifications to the job application process that allow qualified applicants with disabilities to be considered for a position; 
2. Adjustments to the workplace or environment that allows an individual with a disability to perform the essential functions of a position; and 
3. Modifications that permit an employee to enjoy the same benefits and privileges of employment as individuals without disabilities.  

Examples of accommodations could include making facilities accessible; restructuring jobs; modifying schedules, work equipment or policies; or reassigning an employee to a vacant position. The important consideration is that the accommodation enables the individual with a disability to perform the essential functions of a job.  

An employer is excused from providing a reasonable accommodation only if it can demonstrate that such a change would cause “undue hardship.”  Undue hardship is generally characterized by excessive expense or significant difficulty or disruption to the employer.  This must be evaluated on a case-by-case basis.   

When asking for a reasonable accommodation, an employee must inform his or her employer about the need for an adjustment or change to the workplace and state that it is due to a medical condition. Simply requesting a new chair because it is “not comfortable” would not constitute a request for a reasonable accommodation; instead, the employee would need to link the need for a new chair to a medical condition, such as chronic back pain.  These requests can either be oral or written. 

Another individual, such as a family member or healthcare practitioner, can also request an accommodation on behalf of an employee with a disability.   

After a request for an accommodation is made, an employer is then entitled to ask questions and explore solutions.  Under the ADA, the employer can ask about the nature of the disability and functional limitations in order to survey and identify an effective accommodation.  While not required to, the employer has the option of requiring documentation that its employee has an ADA disability, and that the disability necessitates an accommodation.  However, the scope of an employer’s inquiries is limited to this, and cannot, for example, require providing complete medical records.  An employer can also ask a worker requesting an accommodation to sign a limited release allowing the employer to submit a list of specific questions to a medical provider. 

The employee can obtain the requested information from his or her health professional of choice.  However, if that healthcare provider is unable to substantiate the existence of an ADA disability and to verify the need for an accommodation, the employer should first state that the information is insufficient and allow the employee to obtain a compliant note. If this fails, the employer can thereafter ask the employee to submit to a medical examination conducted by the employer’s health professional, but the examination is limited to establishing the existence of the disability and the functional limitations that would require reasonable accommodations. The employer would also have to pay any exam it orders from a provider it designates.  

Employers are prohibited from requesting any documentation if the employee’s disability and need for an accommodation is obvious or 2) the individual has provided sufficient information to demonstrate that he or she has an ADA disability and requires a reasonable accommodation.  

Some employers do not require medical notes.  In this situation, the employee should be able to describe what situations or problems are creating barriers.  Discussing and exploring potential reasonable accommodations is referred to as “engaging in the interactive process.”  During this process, the employer has the prerogative of choosing the accommodation, as long as it is effective.   

Once an employee requests an accommodation, the employer must respond expeditiously.  Ignoring a request, and unnecessarily delaying a response may result in a violation of the ADA.  If the employee needs a reasonable accommodation to perform an essential function and the employee refuses an effective accommodation, he or she may not be qualified to stay in the job.  

Immigration Status Discrimination is Prohibited under California Employment Law

California law provides that employment law protections are extended to all workers “regardless of immigration status.” Cal Civ. Code § 3339. Furthermore, under California law, “a person’s immigration status is irrelevant to the issue of liability” and in a proceeding to enforce a person’s employment rights, “no inquiry shall be permitted into a person’s immigration status unless the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law.” Id.

California’s Anti-Discrimination laws extend to immigrants, including undocumented immigrants. Cal. Code Regs. tit. 2 § 11028. On July 1, 2018, new regulations from California’s Fair Employment and Housing Council (“FEHC”) clarified that discrimination based on immigration status is prohibited under the Fair Employment and Housing Act (“FEHA”). Cal. Code Regs. tit. 2 § 11028. In particular, through the 2018 regulations, the FEHC sought to make clear that immigration status discrimination is a subset of discrimination based on national origin.

Under FEHA, it is unlawful for an employer to discriminate against an employee “in compensation or in terms, conditions or privileges of employment” due to their national origin. Cal. Gov’t. Code § 12940(a). The 2018 regulations explicitly state that under FEHA the “national origin” protected category encompasses an employee’s immigration status. Cal. Code Regs. tit. 2 § 11028(f)(3). An employer who discriminates against an employee or applicant due to immigration status, must demonstrate by “clear and convincing evidence” that such discrimination is “required in order to comply with federal immigration law.” Id. Additionally, citizenship requirements that are a pretext for discrimination or serve the purpose of discriminating against employees or applicants on the basis of national origin or ancestry are unlawful. Cal. Code Regs. tit. 2 § 11028(h).

The 2018 regulations also explicitly state that threats of deportation or derogatory comments about immigration status or mockery of an accent or language may constitute harassment under FEHA. Cal. Code Regs. tit. 2 § 11028(j). Even a single threat of deportation, derogatory comment or incident of mockery may give rise to an unlawful hostile work environment under the act. Id.

As such, even though California law generally provides that immigration status should not interfere with a person’s employment rights, the FEHC’s 2018 regulations further clarified that immigration-status discrimination is prohibited by FEHA and is considered a subcategory of national origin discrimination.

The workers’ rights attorneys at Hunter Pyle Law have handled discrimination cases throughout California. If you have questions about your rights in the workplace, please feel free to contact us in order to utilize our free and confidential intake process. We can be reached at inquire@hunterpylelaw.com or at (510) 444-4400.

Proving Discrimination and Harassment Cases in California

In a victory for workers’ rights, the California Legislature enacted California Government Code section 12923 as a statement of legislative findings and purpose regarding harassment and discrimination claims brought under the Fair Employment and Housing Act (“FEHA”). The legislation was enacted to “provide all Californians with an equal opportunity to succeed in the workplace.” The Legislature noted section 12923 “should be applied accordingly by the courts.” The legislation went into effect on January 1, 2019. Accordingly, courts have cited section 12923 in analyzing employees’ discrimination and harassment cases throughout the past year.

Employees who have suffered workplace harassment and discrimination should be aware of section 12923’s impact in five different ways:

• Section 12923 substantially modified the severe or pervasive standard for harassment claims to require a reasonable person to find “that the harassment so altered working conditions as to make it more difficult to do the job.” Gov. Code § 12923(a).

Prior to this modification, employees were required to prove that the harassing conduct unreasonable interfered with their work performance. Now employees do not need to prove that their productivity declined to establish that the harassing conduct was severe or pervasive.

In response to section 12923, the Judicial Council of California Civil Jury Instructions (“CACI”) revised its jury instructions to define what conduct is considered “severe and pervasive” to establish a harassment claim. The revision added: “[Name of plaintiff] does not have to prove that [his/her] productivity has declined. It is sufficient to prove that a reasonable person who was subjected to the harassing conduct would find that the conduct so altered working conditions as to make it more difficult to do the job.” See CACI No. 2524.

Accordingly, employees can prevail by showing that the harassing conduct altered their working conditions so as to make it more difficult to do the job. See Hyams v. CVS Health Corporation, No. 18-cv-06271-PJH 2019 WL 6827292, at *5 (N.D. Cal., Dec. 12, 2019) (granting defendant’s motion for summary judgment because the plaintiff did “not declare or otherwise present any evidence that the statements “altered working conditions as to make it more difficult to do the job.”).

• Section 12923 clarified that a “single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment.” Cal. Gov. Code § 12923(b).

Prior to this modification, courts consistently held that harassment is not pervasive if it is occasional, isolated, sporadic or trivial. However, in response to section 12923, CACI revised its jury instructions in defining what conduct is considered “severe and pervasive” to establish a harassment claim. The 2019 revision added: “[A single incident can be sufficiently severe or pervasive to constitute harassment.]” See CACI No. 2524.

Since 2019, courts have applied section 12923(b) accordingly in denying pre-trial dispositive motions. See Milner v. TBWA Worldwide, Inc., No. CV 19-08174 DSF (AFMx), 2019 WL 5617757, at *4 (C.D. Cal., Oct. 30, 2019) (“Under California law, even one instance of harassment can be sufficient” to establish a FEHA age-based harassment claim); seealso Doe v. Wells Fargo Bank, N.A., No. CV 19-5586-GW-PLAx, 2019 WL 3942963, at *6 (C.D. Cal. Aug. 19, 2019) (citing Cal. Gov. Code § 12923(b) in explaining “what Defendants fail to recognize is that even one instance of harassment can be sufficient” for a viable FEHA harassment claim against an individual defendant.).

• Section 12923 directs courts to consider the totality of the circumstances in determining a hostile work environment and specifically rejects the “stray remarks” doctrine. Cal. Gov. Code § 12923(c).

The Legislature explained, “a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.” See Concialdi v. Jacobs Engineering Group, No. CV 17-1068 FMO (GJSx), 2019 WL 3084282, at *10  (C.D. Cal. Apr. 29, 2019) (denying Defendant’s motion for summary judgment for age-based discrimination even if Plaintiff’s cause of action was based on stray remarks not made in the direct context of the decisional process.”).

• Section 12923 makes it clear that the same legal standard should apply to all sexual harassment cases regardless of the type of workplace. Cal. Gov. Code § 12923(d).

The Legislature elaborated: “It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past.” Id.

• Section 12923 explained that: “Harassment cases are rarely appropriate on summary judgment” and agreed that “hostile working environment cases involve issues ‘not determinable on paper.’” Cal. Gov. Code § 12923(e).

This provision is especially important because employers often file dispositive motions in harassment cases. See Loi Ngo v. United Airlines, Inc., No. 19-cv-04277-JCS, 2019 WL 6050832, at *6 (N.D. Cal. Nov. 15, 2019) (citing section 12923(e) in granting plaintiff’s motion for remand finding plaintiff did not fraudulently join an individual defendant.).

Employees should keep these powerful provisions in mind when pursuing discrimination and harassment claims under FEHA.

If you have been subject to harassment or discrimination in the workplace, please feel free to call the experienced workers rights attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process.  We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.