On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
HIRING AND FIRING: WHERE THE RUBBER MEETS THE ROAD
Lawsuit Prevention for Employers
It is fair to say that most lawsuits arise from mistakes made during the process of hiring and firing employees. What follows will address important issues related to hiring.
Legal disputes resulting from the hiring decisions of employers typically arise after an applicant is rejected for employment. Lawsuits related to hiring decisions are often based on allegations that an employer’s rejection of the applicant was the product of unlawful discrimination.
In order to advance a successful claim of workplace discrimination, the plaintiff must prove, as a threshold matter, that the employer (or any of its supervisors) was aware of the applicant’s membership in a legally-protected classification, such as age, race or sexual orientation, among many others. The list of protected classifications recognized by California law has grown remarkably in recent years. When added to the protected classifications recognized under federal and local laws, the number of protected classes now exceeds 20.
While an applicant’s membership in some protected classifications is readily apparent, such as race, others are not so obvious. These would include age and sexual orientation, among several others. For example, a black applicant is readily identifiable by race, while someone’s sexual orientation or mental disability is not.
In order to preserve the defense that the employer was unaware of an applicant’s protected status, and could therefore not have engaged in unlawful discrimination on that basis, it is vital that employers avoid requesting (or receiving, if possible) any information during the hiring process that might identify the protected status of applicants. Accomplishing this makes the prosecution of a discrimination claim difficult, because the employer can advance a defense based on the argument that, “since I was not aware the applicant was gay (or disabled, for example), how could the Company have discriminated against him/her on that basis?”
By the same token, if information is requested of an applicant that identifies him/her as being within a protected class, the employer will be vulnerable to a discrimination claim if the applicant is rejected for employment.
This is because the employer will have difficulty explaining why it requested this information unless it intended to use it for some unlawful purpose, i.e., to discriminate. The argument will proceed as follows: “since my client’s sexual orientation (or disability, genetic information, etc.) was completely irrelevant to his/her ability to perform the duties required of the position applied for, why did you request the information unless you intended to exclude homosexuals as my client was excluded?”
Unless the employer can demonstrate that this information was somehow essential to a legitimate business purpose, which is unlikely, this argument will typically prove fatal to the employer’s defense.
For this reason, employment applications should be carefully reviewed to be certain questions requesting date of birth, or place of birth, for example, are excluded. This information would identify the age (if over 40) or national origin of the applicant, both of which indicate protected status.
For the same reasons, all other company documents should avoid requesting any information that could invite disclosures that would identify applicants as members of a protected class. Some of the less obvious classifications that could be revealed by such requests might include gender identity, genetic information, physical/mental disabilities and marital status, among others.
Supervisors who conduct applicant interviews should be carefully trained to avoid such questions, and to be alert for the voluntary, unsolicited presentation of any such information so the conversation can be promptly guided to another subject before incriminating information is conveyed.
On this subject, it is imperative that employee handbooks include carefully-drafted equal employment opportunity and workplace harassment policies that include a comprehensive listing of every legally-recognized protected classification, followed by the proviso, “or any other classification protected under federal, state or local law.” Both policies are required by California law to be included in writing for employers of five or more workers.
For similar reasons, it is critical that employment applications, job descriptions and all other documentation associated with an employer’s hiring process be carefully reviewed to ensure that they are scrupulously consistent with employee handbooks in every respect.
This is because such documents, taken together, are treated by the courts as forming a formal written contract of employment between employees and the employer. As such, they are governed by the technical rules of contract interpretation found in the California Civil Code and related judicial decisions.
One of the fundamental tenets of contract interpretation is particularly relevant to employers in this context. It provides that inconsistent or ambiguous contract provisions will be construed against the drafter.
Since the drafter of these documents is always the employer, business owners are well advised to take careful heed of the admonition: “forewarned is forearmed.”
Next: The firing decision and how it can minimize legal exposure if it is implemented decisively and without procrastination.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. www.jaygputnam.com/articles-by-jay-g-putnam/