By Chris Olmsted, Esq., Ogletree Deakins
California’s Governor Brown has signed a bill amending the Fair Employment and Housing Act, adding protections for workers who request accommodations for disabilities or religious beliefs.
AB 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 obligates 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 Appeals case, Rope v. Auto-Chlor Sys. of Washington, Inc., (2013) 220 Cal. App. 4th 635. In that case, Mr. Rope, a branch manager, requested a leave of absence in order to donate a kidney to his sister. Rope 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 the California Fair Employment and Housing Act (“FEHA”) and for violation of California’s newly enacted organ donor protection act (Labor Code 1510).
AB 987 is a response to one part of the court’s ruling which addressed his retaliation claim. Rope alleged he 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 event 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 [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 plaintiff attorney organization. In support of the bill, the plaintiff lawyers argued that as a result of the Rope decision, courts have dismissed cases where 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 plaintiff lawyers took the position that, “without clarification, an employer can simply terminate an employee who requests a reasonable accommodation, and the employee will have no legal recourse to claim retaliation.” Of course, this position ignores the fact that an employee in this circumstance could potentially sue for the failure to provide a reasonable accommodation.
With the gradual expansion of the Fair Employment and Housing Act and many other employment laws, it is not uncommon to find that an employee deserving discipline, termination 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 employee request for accommodation. It is as important as ever to engage in an interactive process with requesting employees, and to carefully analyze each request. Management employees must understand that adverse actions taken at or around the time of an accommodation request could be perceived as retaliatory. As always, it is helpful to document legitimate business reasons for taking adverse action.