The above case is a reminder that the “language” used by one employee can easily be considered “offensive” and sexual harassing by another employee. An employee’s stray comment, sexual inference or joke is often considered sexual harassment by a co-worker. Interestingly, the improper comments are often made by those employees in a supervisory, management or senior executive position.

To reduce company liability and prevent harassment allegations, claims and lawsuits, many companies conduct sexual harassment prevention training on an annual basis. Employees should be provided with the legal definition of sexual harassment, given examples of sexual harassment based on common work-day interactions, provided the company’s reporting procedures and encouraged to report all incidents without fear of retaliation.

Creating a culture where employees are empowered to report sexual harassment often starts with a well drafted employee handbook that clearly defines the company’s reporting procedures. To prevent sexual harassment, we recommend that all employers review their handbook policies for clarity and consider sexual harassment prevention training on an annual basis. Indeed, this training is a requirement for employers with more than 50 employees, which includes contractors and part-time employees.  Additionally, the training should be considered by smaller employers to bolster their defenses in the event of similar litigation.

Liberty Law provides economical harassment prevention training that complies with the law, adding to the employer’s defense in the event of litigation. Additionally, Liberty Law will provide this training and seminar free of charge to its level 2 and 3 monthly subscribers (more details here) after 6 months of engagement.

Employers need to be aware that the FMLA and California child care leave laws are not  necessarily limited to traditional definitions of family and parentage.  When faced with a request for child care leave, employers need to make an individualized fact-based determination regarding the relationship between the employee and the child.

In its lawsuit against Sears, the EEOC had alleged that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.

This large settlement reminds employers that if employees are out on some form of statutory leave, like the workers’ compensation leave at issue in the Sears matter, and the employee exhausts the leave but is still experiencing a medical condition that qualifies under the ADA or California’s Fair Employment and Housing Act (FEHA), the employer must engage in the “interactive process” to determine if a reasonable accommodation (including a possible extension of the employee’s leave) is available and can be provided to the employee without creating an undue hardship on the employer.  Otherwise, strict application of leave policies that result in the termination of an employee who fails to return to work at the exhaustion of such leave may result in significant liability for the employer.

The employee, a cashier, sued Albertson’s for failure to provide her with reasonable accommodations for her disability.   She had notified Albertson’s about one year prior to the event, due to side effects from her chemotherapy treatment, she needed to drink water constantly and, consequently, had to urinate frequently.   Albertson’s normally did not allow its employees to have beverages at the check-stand.  However, when she told the managers what she needed, she was told it was not a problem and that she was to let the duty-managers know when she needed to go to the bathroom and they would cover for her.

In February 2005, while the employee was on duty at the check-stand, only one manager was in the store, along with a courtesy clerk.  The employee called several times to the back of the store requesting a bathroom break, but was denied because the manager was too busy.   Eventually the employee, unable to control the urinary urge, and unable to leave the check-stand, urinated on herself in front of customers.  The employee left the store in tears and subsequently underwent a major depression and hallucinations of continuing body odor.  She entered a psychiatric hospital.  There is no evidence that the employee mentioned her accommodation to the on-duty manager that day, or that the on-duty manager was aware of the accommodation granted to the employee.

The jury heard evidence of the employee’s susceptibility to emotional distress.  She had grown up in El Salvador during a period of civil war, had seen people killed, had been robbed at gunpoint, and underwent a myriad of other stressful experiences.  Albertson’s position was that the employee was unusually susceptible to depression, contending that the February 2005 incident triggered a shift from general anxiety disorder to a more severe psychotic disorder.  The jury disagreed.

Albertson’s had a written procedure for processing employee requests for reasonable accommodation, and decisions about such accommodation were made by Albertson’s HR mangers for the Northern California district, not by store managers.  If a store manager granted an ongoing accommodation to an employee, a record of such should be made to pass along to a new manager, but sometimes no record was made.  None was used in the employee’s case.

Under the FEHA, an employer that fails to make reasonable accommodation for an employee’s known physical disability engages in an unlawful employment practice.  It is also an unlawful employment practice for an employer to fail to engage in a good faith interactive process with the employee to determine an effective reasonable accommodation if an employee requests one.  These two aspects are separate.  Albertson’s argued that the employee had a continuing duty to notify managers of her disability and agreed-upon accommodation.  The Court found otherwise.  Once a reasonable accommodation has been granted, then the employer has a duty to provide it.

Employers need to make sure they are providing reasonable accommodations that do not pose an undue hardship to the employer. And as this case highlights, it is also important to continue engaging in the good faith interactive process to determine whether the accommodation is working and whether your supervisory personnel are properly implementing the accommodation.

Title II of GINA, which prohibits genetic information discrimination in employment, took effect on November 21, 2009. The regulation applies to employers with more than 15 employees. Under Title II it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts acquisition of genetic information by employers and other entities covered by Title II, and strictly limits the disclosure of genetic information.

The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.

The new poster supplement reflects updated federal employment discrimination law, including the Americans with Disabilities Act Amendments of 2008. It also contains a new section about the Genetic Information Nondiscrimination Act of 2008 (“GINA”), effective November 21, 2009, along with updated EEOC contact information. There are also revisions affecting employers holding federal contracts or subcontracts, supplementing the “EEO Is The Law” poster promulgated by the Office of Federal Contract Compliance Programs (“OFCCP”) in August 2008. These revisions include a change to the Individuals with Disabilities section, a change to the Vietnam Era, Special Disabled Veterans section, a new section regarding Retaliation, and an update to the OFCCP contact information.

Employers may comply with the new requirement by downloading the supplement and posting it alongside their September 2002 EEOC poster.