ADA Does Not Require Employer to Hire Disabled Applicant Over One That Is More Qualified.

The U.S. Court of Appeals, D.C. Circuit, in a recent decision concluded that a deaf job applicant could not pursue his employment discrimination case against the District of Columbia School system where the employer hired better qualified candidates for the positions for which plaintiff applied. The court stated that "An [unsuccessful applicant] can directly challenge [an employer's] qualifications-based explanation only if [the applicant] was significantly better qualified for the job than those ultimately chosen" and the qualifications gap must be "great enough to be inherently indicative of discrimination." (See Adeyemi v. District of Columbia)

How the California Supreme Court's Decision on Same-Sex Marriage Will Affect Employers.

The California Supreme Court recently ruled that state laws limiting marriage to opposite-sex couples are unconstitutional. Opponents have collected signatures to place a constitutional amendment on the November ballot to limit marriage to the union between a man and woman. Although the controversy is far from over, if the high court's decision holds up against the ballot challenge, its impact will be felt in the workplace.

Employers should be conscious of the following:

1. Discrimination. California law prohibits discrimination based on actual or perceived sexual orientation. Now, it is also illegal to discriminate against an employee or applicant because of the gender of his or her spouse.
2. Benefits. Employers must now provide equal spousal benefits and privilege that are required by California law or offered under the employer's own policies to spouses who are of the same or opposite sex. However, this does not apply to benefits required or authorized under federal law such as COBRA, retirement plans, cafeteria plans and health savings accounts.
3. Domestic partnerships. Domestic partnerships remain on the books, therefore, employers must continue to recognize domestic partnerships and provide benefits to domestic partners as required by existing California law.

General Liability

Assumption of Risk Doctrine Can Apply to Non-Contact Sports Such as Golf.

The California Supreme Court held that the primary assumption of risk doctrine is applicable to non-contact sports such as golf and that being struck by a carelessly hit ball is an inherent risk of that sport. Therefore, the defendant whose tee-shot hit the plaintiff golfer in the head would not be liable for negligence unless the defendant's acts were reckless. (See Shin v. Ahn)

Assumption of Risk Doctrine Applies to Spectators.

The California Court of Appeal held that primary assumption of risk doctrine turns on the nature of the activity and the relationship of the parties to that activity. Thus, the doctrine bars injury claims by a plaintiff spectator at a skateboarding competition, when plaintiff was injured as he, along with a mob of spectators, attempted to grab a skateboard deck that was flung into the crowd. The court reasoned that plaintiff and other participants should have foreseen the possibility of injury and that there was an inherent risk in competing for the prize (the skateboard deck) and plaintiff willingly took that risk. (See McGarry v. Sax)