Avoiding Workplace Discrimination Claims

By Aldon Bolaños, Esq.

It has been observed that as more Major League hitters don body armor and crowd the plate, the natural result is more hit batsmen. A similar trend is taking place in the workplace: legislative reform of workers’ compensation law in favor of controlling the cost of claims has led to a reactionary surge in discrimination claims by injured workers against their employers. If ultimately found liable, the consequences to employers can be severe.

California’s public policy that “there should not be discrimination against workers who are injured in the course and scope of their employment,” is codified in California Labor Code §132a. If found liable under this section, an employer may be found guilty of a criminal misdemeanor, may be ordered to pay a penalty of up to $10,000, and may be ordered to reinstate a terminated employee and provide back pay and benefits. Because discrimination against injured workers has proven difficult for courts to define but very easy for injured workers to allege, California employers must take preemptive measures to insulate themselves from potential liability.

In most cases, businesses are exposed to a discrimination claim whenever they treat injured workers differently than other employees. For example, violations of §132a have been found where an employer reduces a workers’ seniority due to industrially related absences. Other clear violations include firing an injured employee on the day of an industrially related back surgery, or treating the worker with hostility when he returns to light duty, precluding him from meetings and insinuating that he faked his injury.

The distinction between discrimination and sound business judgment is blurred when employees return to work with physician-imposed restrictions on the types of tasks they can safely perform. Often, this puts employers in the unenviable position of assigning personnel to tasks they cannot physically perform. For example, a cargo loader with a restriction requiring that he lift objects weighing no more than 15 pounds at a time is of little value to a company in the business of distributing furniture much heavier than 15 pounds. In this case, if the employee is demoted and takes a pay cut, the employer may have exposed itself to a discrimination claim.

The key for California employers to avoiding liability under this statute is to document efforts to treat injured workers returning to the workplace as any other employee would be treated. This can mean setting forth workplace standards of performance for certain positions, and evaluating employees periodically to ensure that the standards are being met. It is equally important to document shortcomings in job performance by employees returning to work after a workplace injury. If an employer can demonstrate to a fact-finder that it discharged or demoted an employee based solely on job performance criteria applicable to all employees, the employer will have taken an important step toward insulating itself from a discrimination claim.

California’s employer community should strive to reintegrate loyal and diligent workers back into the workforce after they have suffered a workplace injury. A reasonable effort must be made to accommodate temporary work restrictions while the employee heals from his or her injury. However, a company does not need to act to its detriment to accommodate employees. Like any protected class of individuals, injured workers are entitled to be treated in a manner similar to their non-protected peers.

Should a discrimination claim arise, don’t drop the ball. It is imperative to immediately seek legal representation to ensure a strong defense. Insurers do not provide coverage for discrimination claims. As a result, employers are forced to stand alone in their own defense.

Roxborough, Pomerance & Nye has a long and successful history of providing quality legal representation to California’s employer community. The firm possesses an excellent record of obtaining favorable results whether by outright dismissal, prevailing on the merits, or settlement at a fraction of the potential liability. Employers interested in either taking preventative measures to insulate itself from liability or obtaining quality legal representation when a claim has been made should contact the firm to set up a meeting with one of the principals.

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