California Court Further Expands FEHA Protections to Employees Based on Association with Disabled Person

Rope v. Auto-Chlor System of Washington, Inc., No. B242003 (October 16, 2013): Recently, a California Court of Appeal held that a fired employee could proceed with a lawsuit in which he claimed that his employer discriminated against him based on his association with his disabled sister to whom he planned to donate a kidney.

Scott Rope was employed as a branch manager by Auto-Chlor System of Washington, Inc. since September 2010. When he was hired, Rope informed Auto-Chlor that in February 2011, he planned to donate a kidney to his disabled sister. In November 2010, Rope learned that he will be entitled to 30 days of paid leave for the transplant under a new law called the Michelle Maykin Memorial Donation Protection Act (DPA). Based on the DPA, which was scheduled to go into effect on January 1, 2011, Rope requested 30 days of paid leave from Auto-Chlor’s regional manager who said he would “look into it.”

Rope allegedly continued to follow up with Auto-Chlor without getting a response. He also informed the company that depending on how the surgery and recovery went, it was possible that he would need some accommodations upon his return from leave. Despite Rope’s satisfactory performance reviews, Auto-Chlor terminated Rope’s employment for poor job performance on December 30, 2010—two days before the DPA went into effect. Rope sued Auto-Chlor, alleging multiple claims, including disability discrimination by association, failure to maintain a discrimination-free workplace, and a violation of the DPA.

The trial court dismissed the case for failure to state a claim. The California Court of Appeal affirmed some parts of the trial court’s decision, including the claim for violation of the DPA since the law had not yet gone into effect. However, the court held that Rope could proceed with his claim for association discrimination under the California Fair Employment and Housing Act (FEHA).

Because of a lack of California precedent on the issue of association discrimination, the court looked to a Seventh Circuit Court of Appeals case, Larimer v. International Business Machines Corp., which addressed association discrimination under the Americans with Disabilities Act. Using the “expense” theory under Larimer, the California Court of Appeal noted that there was a reasonable inference that Auto-Chlor terminated Rope’s employment in order to “avoid an expense stemming from Rope’s association with his physically disabled sister.” The court also allowed Rope to proceed with his claim of failure to provide a discrimination-free environment. The court stated that the claim can proceed as long as there is a viable discrimination claim to which it can attach. In this instance, the court found, Rope’s failure to provide a discrimination-free environment claim could attach to his association discrimination claim.

According to a shareholder in the Orange County office of Ogletree Deakins: “Although Rope is a decision based on the pleadings, it is significant in that it exhibits the broad reach that FEHA provides to not just those with a disability, but also to the people with whom they are associated. Employers should train their front-line supervisors on the breadth of such protections so that they can be prepared to deal with employees who might otherwise not seem to fall in a protected category.”