July 2000 Vol. 6 No. 7 ISSN 1087-6219
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In This Issue

• Employers may eliminate employment security policies unilaterally
• Flight attendant weight requirement violates Title VII
• Single unsavory incident not enough to prove hostile work environment
• Duty to provide reasonable accommodation requires investigation of reassignment options
• Skateboarder assumes the risk of injury from skateboarding in friend's driveway
• UPDATES

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Employers may eliminate employment security policies unilaterally

The California Supreme Court has ruled that employers may terminate a unilaterally adopted employment security policy, so long as they do so after a reasonable time, on reasonable notice, and without interfering with their employees' vested benefits. The ruling responded to a certified question from the Ninth Circuit Court of Appeals under Rule of Court 29.5.

Pacific Bell adopted the following written policy in 1986: “It will be Pacific Bell's policy to offer all management employees who continue to meet our changing business expectations employment security through reassignment to and retraining for other management positions, even if their present jobs are eliminated. This policy will be maintained so long as there is no change that will materially affect Pacific Bell's business plan achievement.”

In October 1991, Pacific Bell announced that it would terminate the policy in April 1992. It gave its employees a choice. Those who remained with the company received enhanced pension benefits. Those who resigned right away received additional enhanced pension benefits, outplacement services and continuation of employee benefits for a year, plus severance pay. Pacific Bell did not present any evidence that the termination of the policy was prompted by a change that would materially alter its business plan achievement.

The 1986 employment security policy became a unilateral implied-in-fact contract when its employees accepted the terms by continuing their employment. A minority of other jurisdictions require mutual assent to any changes in such policies. However, the majority rule is that employers must have a way to alter their employee handbooks to meet changing needs.

In this case, the offer of continued employment after reasonable notice of the change in policy was all the consideration required to implement the new policy. When the employees accepted those terms by continuing to work, the new policy supplanted the old one.

Asmus v. Pacific Bell, 96 Cal. Rptr. 2d 179 (2000).

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Flight attendant weight requirement violates Title VII

The Ninth Circuit has ruled that an airline may not use weight requirements that unfairly discriminate against female flight attendants. Such requirements cannot be justified as appearance standards.

From 1980 to 1994, United Airlines required its flight attendants to meet maximum weight requirements based on sex, height and age. The requirements for women were 14 to 25 pounds less than men of the same height and age. United adopted the weights for men from a table of desirable weights for men with large body frames. It adopted the weights for women from a table of desirable weights for women with medium body frames.

An employer may impose different, but essentially equal, burdens on men and women with respect to appearance. For example, Title VII allows an employer to set different hair length requirements for men and women. It may also require men, but not women, to wear neckties. If the burdens are unequal (such as requiring women but not men to wear uniforms), the employer must justify the difference as a bona fide occupational qualification.

In this case, United imposed more burdensome weight requirements on its female flight attendants. Therefore, it had to show that using the medium frame standards for women was reasonably necessary to the normal operation of its business, and that it concerned job-related skills and aptitudes. There was no evidence to support such a showing.

Frank v. United Airlines, Inc., 2000 WL 791209 (9th Cir. Jun. 21, 2000).

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Single unsavory incident not enough to prove hostile work environment

The Ninth Circuit has ruled that a single instance of inappropriate sexual advances does not establish sexual harassment under Title VII. The conduct was not sufficiently egregious to give rise to an objectively reasonable perception that the terms of employment were altered.

Patricia Brooks worked as a telephone dispatcher for the City of San Mateo. She claimed that a coworker placed his hand on her stomach and fondled her breasts. He ceased his activity when another coworker appeared. Brooks reported the incident the following day. The City put the coworker on administrative leave. After the City began termination proceedings, he resigned.

Brooks took a leave of absence and began seeing a psychologist. When she returned to work six months later, she experienced ostracism and claimed that her supervisors mistreated her. She also claimed that she received an unwarranted negative performance evaluation. While her appeal of the evaluation was pending, Brooks left work and never returned.

Title VII prohibits hostile work environment harassment based on gender. To prove such a claim, the plaintiff must show offensive harassment so severe and pervasive that it alters the conditions of employment. Title VII is not meant to be a general civility code for the workplace.

The plaintiff's perception of a hostile environment must be objectively reasonable. The question is whether a reasonable woman in the plaintiff's position would have viewed the environment as hostile.

Although a single incident of inappropriate conduct may give rise to a Title VII violation, the severity necessary to establish a hostile environment varies inversely with the pervasiveness and frequency of the conduct. Here, Brooks was harassed on a single occasion, for a matter of minutes, in a way that did not impair her ability to do her job. That was not enough to alter the terms or conditions of her employment.

The Court acknowledged that the EEOC's Policy Guide presumes that the intentional touching of an intimate body part is sufficiently offensive to alter the conditions of employment. However, it concluded that the presumption was not consistent with the totality of the circumstances test for determining the existence of a hostile environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).

The actions that Brooks complained about upon her return could not support a retaliation claim. There was no evidence of any adverse employment action. Ostracism does not constitute adverse action by the employer, because the employer cannot force employees to socialize.

Although a negative evaluation may constitute adverse action, Brooks's did not. Because the City could have changed the evaluation in response to Brooks's appeal, it was not sufficiently final to constitute adverse action. Brooks left before the City made the final decision.

Brooks v. City of San Mateo, 2000 WL 713748 (9th Cir. Jun. 5, 2000).

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Duty to provide reasonable accommodation requires investigation of reassignment options

The First District Court of Appeal in San Francisco has reversed summary judgment for an employer in a disability discrimination case. There were triable issues about the duty to reassign a disabled employee to an available alternative position.

Susan Spitzer worked for Good Guys as a store manager. She had discogenic spondylosis, a degenerative disc disease that caused serious chronic back pain. The store manager job was a physically demanding one that required the manager to be on her feet a lot of the day. Managers worked an average of 10 hours daily.

Spitzer told management that she needed an accommodation for her back problem. She asked to be reassigned to a different position that would allow her to get off her feet. She was unable to locate such a job on her own.

Good Guys responded to the requests for accommodation by restructuring the store manager job for Spitzer. She received medical leave, periodic breaks, the right to leave work early for physical therapy, and use of a chair on the sales floor. Good Guys also suggested that Spitzer apply for a management trainer position, and continually check the company's job hot line.

The Fair Employment and Housing Act requires employers to provide reasonable accommodations to disabled employees. That requirement includes a duty to reassign disabled employees to suitable vacant positions if they are unable to function effectively in their existing positions.

There was evidence that suitable positions existed to which Good Guys could have reassigned Spitzer. Good Guys did not fulfill its reasonable accommodation obligation by telling Spitzer to check the hot line. If other suitable vacancies existed, Good Guys should have initiated the reassignment itself.

Spitzer v. Good Guys, Inc., 96 Cal. Rptr. 2d 236 (Ct. App. 2000).

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Skateboarder assumes the risk of injury from skateboarding in friend's driveway

The San Diego division of the Fourth District Court of Appeal has ruled that a landowner does not have a duty to refrain from increasing the risk of injury from skateboarding. The landowner does not have an organized relationship with the activity.

Michael Calhoon started to lose his balance while skateboarding in a friend's driveway. As he stepped backward, he tripped over a planter in the driveway. He fell and impaled himself on a metal pipe in the planter. He sued his friend's parents for negligence. The trial court granted summary judgment, and the court of appeal affirmed.

Under the primary assumption of the risk doctrine, participants in sporting activities may not sue for injuries resulting from risks that are inherent in the activity. However, defendants have a duty to use due care not to increase the risks beyond those that are inherent.

Sustaining an injury from a fall is an inherent risk of skateboarding. Calhoon argued that his friend's parents had increased the risks by concealing a metal pipe in a planter in their driveway. The argument failed for two reasons:

First, the pipe did not increase the risk of injury from the sport. He suffered an injury because he fell. Falling is an inherent risk. The pipe made his injuries more severe, but did not increase the risk of injury.

Second, the duty not to increase the risk is only imposed on those who have an organized relationship with the plaintiff and the sporting activity. The friend's parents were not in control of the conditions under which Calhoon engaged in skateboarding.

Calhoon v. Lewis, 96 Cal. Rptr. 2d 394 (Ct. App. 2000).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Boon v. Rivera (June 2000 issue), now reported at 96 Cal. Rptr. 2d 276 (Ct. App. 2000).

FirstAmerica Automotive, Inc. v. Sweeney (May 2000 issue), review granted (Jun. 14, 2000). The decision may no longer be cited. Cal. R. Ct. 976(d), 977.

Headwaters Forest Defense v. County of Humboldt (May 2000 issue), now reported at 211 F.3d 1121 (9th Cir. 2000).Lugtu v. California Highway Patrol (April 2000 issue), time for grant or denial or review extended to Aug. 1, 2000.

PLCM Group, Inc. v. Drexler (June 2000 issue), modified (Jun. 2, 2000).

Potvin v. Metropolitan Ins. Co. (June 2000 issue), time for grant or denial of rehearing extended to Aug. 7, 2000).

Sharon P. v. Arman, Ltd. (January 2000 issue), cert. denied, 2000 WL 462373 (Jun. 19, 2000).

Three Boys Music Corp. v. Bolton (June 2000 issue), now reported at 212 F.3d 477 (9th Cir. 2000).

Weiner v. San Diego County (May 2000 issue), now reported at 210 F.3d 1025 (9th Cir. 2000).

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