California Amends FEHA, Protecting Accommodation Requests

On July 16, 2015, California’s Governor Jerry Brown signed a bill amending the California Fair Employment and Housing Act (FEHA), adding protections for workers who request accommodations for disabilities or religious beliefs.

Assembly Bill (AB) No. 987 amends sections (l) and (m) of Government Code section 12940. Those sections prohibit discrimination on account of religious beliefs and disability, respectively. Existing law also requires an employer to grant reasonable requests for accommodation. The amendment makes it unlawful for an employer to “retaliate or otherwise discriminate against a person for requesting accommodation . . . regardless of whether the request was granted.”

The amendment is a legislative reaction to a 2013 California court of appeal case, Rope v. Auto-Chlor Sys. of Washington, Inc. In that case, an employee, who worked for Auto-Chlor System of Washington, Inc. as a branch manager, requested a leave of absence in order to donate a kidney to his sister. The employee made the request five months in advance. However, two months before the surgery, he was fired for poor performance. The employee sued for associational disability discrimination under (FEHA) and for violation of California’s then-newly enacted organ donor protection act (which was codified at Labor Code 1510).

AB 987 is a response to one part of the court’s analysis of the employee’s  retaliation claim. The employee alleged that he had suffered retaliation for engaging in the FEHA “protected activities of requesting leave for his sister’s disability/medical condition.” The court rejected the retaliation claim, finding that simply requesting accommodation was not a protected activity. The court wrote:

We find no support in the regulations or case law for the proposition that a mere request—or even repeated requests—for an accommodation, without more, constitutes a protected activity sufficient to support a claim for retaliation in violation of FEHA. On the contrary, case law and FEHA’s implementing regulations are uniformly premised on the principle that the nature of activities protected by subdivision (h) [of FEHA] demonstrate some degree of opposition to or protest of the employer’s conduct or practices based on the employee’s reasonable belief that the employer’s action or practice is unlawful.

The bill was sponsored by a plaintiffs’ attorney organization. In support of the bill, the plaintiffs’ lawyers argued that as a result of the Rope decision, courts have dismissed cases in which an employee was fired or otherwise discriminated against in retaliation for simply making a request for reasonable accommodation for a disability or religion. As quoted in the legislative history, the plaintiffs’ lawyers took the position that “[w]ithout clarification, an employer can simply terminate an employee who requests a reasonable accommodation, and the employee will have no legal recourse to claim retaliation.”

Practical Tips

With the gradual expansion of FEHA and many other employment laws, it is not uncommon to find that an employee deserving discipline, discharge, or other adverse action also happens to be in a protected class. While in most cases the protected class does not insulate the employee from legitimate action, such matters must be handled with great care.

Given that a request for religious or disability accommodation will now become a protected activity, it is important that employers continue to train supervisors and human resources personnel to identify and document any requests for accommodation. It remains important for employers to attempt to engage in an interactive process with requesting employees and to carefully analyze each request for accommodation. Management employees should recognize that employees may argue that adverse actions taken at or around the time of an accommodation request are retaliatory. As always, it is helpful to document legitimate business reasons for taking adverse action.