Ninth Circuit Explains "BFOQ" Defense in Sex Discrimination Case

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex and other criteria. But there are some defenses to discrimination. One of these is the "BFOQ" or bona fide occupational qualification.

As the court of appeals explained in Breiner v. Nevada Dept. of Corrections, the BFOQ defense is "an 'extremely narrow exception to the general prohibition of discrimination on the basis of sex' that may be invoked 'only when the essence of the business operation would be undermined' by hiring individuals of both sexes."

So, the Nevada prison system was beset by a number of instances of male corrections officers engaging in sexual conduct with female inmates. A guard impregnated an inmate, which came to the attention of administration. The inmates purposely traded favors for better treatment.

Nevada's response, in part, was to exclude males from certain jobs, including "Corrections Lieutenant" at women's prisons. The thought was that hiring only female lieutenants would cut down corruption caused by female inmates' solicitations. Some male corrections officers sued, saying they were denied promotional opportunities at the female prisons.

The Ninth Circuit reversed the prison systems' summary judgment victory. The court did not believe that Nevada adequately supported its justification for discriminating against male candidates for hiring at women's prisons.

This opinion explains in detail the BFOQ defense and the employer's difficulty proving it. Much of the opinion focuses on prison cases, but the BFOQ defense and its burdens will be applicable to all businesses seeking to establish a sufficient justification for hiring women or men exclusively in a particular setting.

The case is Breiner v. Department of Corrections and the opinion is here.

New DOT Drug Testing Rules

The US Department of Transportation (DOT) modified its drug testing rules. The entire new rules can be read here.

Only employers that MUST comply with DOT drug testing rules (for drivers of larger trucks) MUST comply with these new rules, which take effect October 1, 2010.
So, employers that have voluntary (optional) drug testing plans in effect may wish to modify them to conform with the DOT rules, but they do not have to.

The DOT has summarized the changes in an email which I'm pasting here:

1) The Department is required by the Omnibus Transportation Employees Testing Act (Omnibus Act) to follow the HHS requirements for the testing procedures/protocols and drugs for which we test.

2) Primary laboratory requirements in this final rule include:

- Testing for MDMA (aka. Ecstasy);

- Lowering cutoff levels for cocaine and amphetamines;

- Conducting mandatory initial testing for heroin;

3) The Department brought several testing definitions in-line with those of HHS.

4) Each Medical Review Officer (MRO) will need to be re-qualified – including passing an examination given by an MRO training organization - every five years. The Final Rule eliminated the requirement for each MRO to take 12 hours of continuing education every three years.

5) An MRO will not need to be trained by an HHS-approved MRO training organization as long as the MRO meets DOT’s qualification and requalification training requirements.

6) MRO recordkeeping requirements did not change from the five years for non-negatives and one year for negatives.

7) The Final Rule does not allow the use of HHS-Certified Instrumented Initial Testing Facilities (IITFs) to conduct initial drug testing because the Omnibus Act requires laboratories to be able to perform both initial and confirmation testing but IITFs cannot conduct confirmation testing.

8) The Final Rule is effective October 1, 2010.

Ninth Circuit and Female on Male Sexual Harassment

The EEOC sued on behalf of Lamas, a male worker at Las Vegas' airport. He worked for a service company called Prospect Airport Services. Over time, a female, married employee,Munoz, openly solicited Lamas for sex and a relationship. When Lamas rebuffed him, she recruited co-workers to help. He steadfastly told her he wasn't interested.

Lamas ultimately complained. The first supervisor said she'd talk to Munoz, but didn't. The senior Prospect manager told Lamas it was a "personal" issue but that he would talk to Munoz as a "favor." He actually did talk with Munoz, but she was undeterred.

Lamas over time became upset and offended, his work performance suffered, and - yep - Prospect fired him.

So, the district court held the work environment was insufficiently hostile. The Ninth Circuit reversed. The court went through each element of a harassment claim and found Lamas satisfied each one at least enough to avoid Prospect's motion for summary judgment.

The opinion of course is interesting because it involves a female harassing a male. For readers of this blog, though, it's a reminder of how unsophisticated line management is about harassment. Had the sexes been reversed, it's pretty safe to assume management would not have been so cavalier. Lamas had written evidence of Munoz's come-ons. Management simply did not take him seriously, but then fired him when his performance deteriorated. Jeez. If they're conducting training at Prospect, it's not sinking in or it's not effective.

The opinion is EEOC v. Prospect Airport Services, Inc. and the opinion is here.

Court of Appeal Reverses Summary Judgment in Age and Disability Case

Sandell, formerly Taylor guitars' vice president of sales, suffered a stroke. As a result, he walked with a cane and spoke slower than had previously had. Taylor ultimately fired him, claiming he did not motivate the sales staff and because sales were anemic under Sandell's leadership.

The court of appeal reversed the trial court's summary judgment. On the disability discrimination claim, the court noted that Sandell did not claim Taylor failed to accommodate him. Sandell said he could do his job without accommodation. Rather, this was a straight disparate treatment case - "they fired me because I had a disability."

Finding a factual dispute on whether Taylor's reasons for discharge were pretextual, the court relied on performance appraisals that were rosier than Taylor's characterization of Sandell's performance during litigation. So... stop me if you've heard this ... overly nice performance appraisals will come back to bite you.

Another interesting part of the opinion addressed Sandell's subordinates declarations confirming Sandell's lack of leadership skills. The court said that the employees had failed to complain during Sandell's employment, so a reasonable jury could infer the opinions had changed (for litigation?!). That's a very generous inference for the court to make, IMO.
Finally, the court was troubled by some he-said /he-said discriminatory comments, which the court believed was enough additional evidence of discrimination to send the case to the jury. The court rejected the "same actor" claim that the CEO hired and fired Sandell within five years. The court said that the CEO's perception of Sandell as "old" could have changed within that period of time, particularly because of Sandell's physical changes.

The opinion is Sandell v. Taylor-Listug, Inc. and the opinion is here

No More Demurrers to Wage Hour Class Action Complaints?

The Court of Appeal in Guiterrez v. California Commerce Club, Inc. (opinion here) pretty much said that trial courts should not sustain demurrers (aka motions to strike class allegations) in wage-hour class actions. Ever. There are a few cases where demurrers have been sustained / granted. So, unless the Supreme Court or Legislature closes the door forever, it is not sanctionable to keep trying!

New California Workers' Compensation Regulations

Workers' compensation law is just one more thing that HR has to be worried about. I try not to worry about it, but I can't help it. Our friends at the California Chamber of Commerce published a handy FAQ regarding new regulations. The regulations concern Medical Provider Networks. In particular, the posters and notices must be revised substantially. The FAQ's lead you to the government's source documents. The deadline is October 8, 2010, so get ready.