An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

because he was absent due to the industrial injury. This, the Board concluded, violated Section 132a. The California Supreme Court affirmed the decision. In summary, the court concluded:

 Section 132a prohibits an employer from types of discriminatory conduct which are not specifically enumerated in the statute (e.g. filing a claim, receiving a rating, award or settlement, etc.). Rather, the broad policy set forth in the statute is that “there should not be discrimination against workers who are injured in the course and scope of their employment.”  The employer in this case discriminated against the employee because the evidence showed that the employer was not required under the labor contract to lay the employee off due to his absence from work. The undisputed evidence showed that the union and the company had consistently interpreted the contract as permitting the employer and the union to agree to extend seniority. The court noted that the employer made no effort to utilize its customary procedure of extending a leave of absence. It contrasted these facts with the situation in which the employer had made a bona fide attempt to extend seniority and the union had refused to agree. The court agreed with the conclusion that the evidence did not show the employer was compelled to terminate Maese’s seniority rights and in turn his employment.  The court rejected the employer’s argument that Maese’s loss of seniority was outside the scope of Section 132a’s protection as it did not constitute “discharge, or a threat to discharge.” Rather, the court concluded that the language in the statute, “in any manner discriminates against any employee,” was to be given a liberal interpretation and applied to Maese’s loss of seniority.  An employer is not required to retain all employees who sustain injuries on the job. However, here, Maese, despite his industrial injury, remained competent to perform his job and his position was open upon his return. The law does not compel an employer to “ignore the realities of doing business by re-employing unqualified employees or employees for whom positions are no longer available.”

(c) Discrimination Per Se, And The Business Realities Defense The case of Smith v. WCAB 1003 gave further definition to the business necessity defense. In that case, an employee (Smith) worked in a winery. Smith had incurred an industrial injury, and received a permanent disability rating. Smith was subsequently fired for alleged violation of a company rule which authorized a discharge upon two consecutive non-reported absences from work. One of the employer’s supervisors testified at the hearing that employees who violated the rule were always fired if they had no “reasonable excuse for not being discharged.” The facts show that the employee’s physician had recommended that she enter the hospital for tests related to her industrial injury. Smith was absent on two days because of the scheduled tests. There was evidence that the employer knew of the scheduled tests because its benefit

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