An Administrator's Guide to California Private School Law

Chapter 7 - Recognizing And Preventing Harassment, Discrimination And Retaliation

administrator had refused to authorize the tests. A meeting was scheduled for a few days later with representatives of the employer to discuss authorization for the additional medical tests. In the meantime, a representative of the employer called Smith to inquire why she had not reported the absences. Smith contended she had in fact reported the absences. There was also evidence that Smith’s husband had telephoned to report her impending absence. On the date Smith was meeting with company representatives to discuss the disputed medical tests, she was served with notice that her employment was being terminated for violating the two-absence rule. The Board found that the employer had uniformly applied the two-absence rule to all employees, and therefore no discrimination had occurred. However, the Court of Appeal annulled the Board’s decision. It reasoned that there was evidence from which the Board could conclude that the employer’s conduct, although ostensibly based on strict application of its two-absence rule, had invoked the rule as a pretext for unlawful discrimination. The court reasoned that actions triggered by the industrial injury work to the detriment of the claimant, unless necessitated by “the realities of doing business” prohibited by Section 132a. Procedurally, the court held the employee had the burden of initially showing the employer’s actions were detrimental, the action, and its cause. The burden then shifts to the employer to prove an affirmative defense of business realities. The court commented that any evidence tending to prove that the employer’s invocation of the two-absence rule was not properly applied worked to weaken the employer’s affirmative defense of business necessity because it tended to prove also that the action was not necessary and that it was not directly linked to business realities. The court also added that the other evidence which must be considered would include the employer’s past practices in like situations, what constitutes reporting, what constitutes a reasonable excuse for not reporting, and the criteria for the decision whether and when to fire an employee who is “eligible” to be fired. This decision places a burden on the employer to carefully document and justify personnel actions it takes involving an industrially injured employee. While this burden may seem substantial, through careful personnel management, liability may be avoided. The courts have upheld an employer’s actions as non-discriminatory in various situations where the employer has shown that it reasonably relied upon competent medical evidence that an employee was unable to work, or that it would not have any vacancies available consistent with the employee’s limitations, or that work rules negotiated with the labor organization required a particular action. The following cases illustrate application of these principles.

An employee sustained injuries to his back and the employer received a report from the employee’s physician indicating that he was precluded from doing heavy lifting, which thereby prevented him from performing the customary duties of his job as an iron worker. The collective bargaining agreement in effect at that time provided that an employee could be terminated if on leave of absence for 12 months. The employee had also obtained a finding from the Rehabilitation Bureau that he was precluded from returning to his former employment. The Board concluded that the employer had established the business realities defense in this case. Although the employer may have had the discretion to keep the employee on a leave of absence beyond the 12 months, the evidence also showed that the employer had a reasonable good faith basis

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