In Luis Castro-Ramirez v. Dependable Highway Express, the California Court of Appeal held that California’s Fair Employment and Housing Act (“FEHA”) – which requires employers to reasonably accommodate employees with disabilities – now requires employers to reasonably accommodate employees who are associated with a disabled person. This is an unprecedented decision and will likely to be appealed. Until that time, employers should train supervisors to seek assistance from human resources when making accommodations decisions, and to treat any such decisions on a case-by-case basis.
Plaintiff’s son required daily dialysis at night and Plaintiff was the only one who could administer the treatment. In his interview, Plaintiff informed DHE that he could not work nights as he had to attend to his son’s medical needs. From 2010-2013, DHE accommodated Plaintiff’s request to work during the day. In 2013, a new supervisor changed Plaintiff’s schedule to a later shift, Plaintiff complained that the proposed schedule would not allow him to attend to his son, and the supervisor still gave him the later shift. Plaintiff once again complained to the supervisor and the supervisor reiterated that Plaintiff had to work the later shift. The supervisor did not have a legitimate reason for placing Plaintiff on the later shift, and customers even requested that Plaintiff be placed back on his regular shift. Despite Plaintiff’s complaints, three days later, the supervisor terminated Plaintiff and told Plaintiff that he “had quit by choosing not to take the assigned shift.”
Plaintiff filed a lawsuit for: (1) “associational disability discrimination” in violation of FEHA; (2) failure to prevent discrimination in violation of FEHA; (3) retaliation in violation of FEHA; and (4) wrongful termination. With respect to his first claim, Plaintiff argued that DHE improperly fired him for requesting an accommodation to care for his disabled son. The trial court granted DHE’s motion for summary judgement, and Plaintiff appealed.
The Court of Appeal stated that “No published California case has determined whether employers have a duty under FEHA to provide reasonable accommodations to an applicant or employee who is associated with a disabled person. We hold that FEHA creates such a duty.” The Court bootstrapped the language in FEHA prohibiting discrimination to the language in FEHA regarding the duty to accommodate. Specifically, FEHA explicitly prohibits associational discrimination. FEHA’s duty to accommodate, however, states that it is unlawful for an employer “to fail to make a reasonable accommodation for the known physical or mental disability of an applicant or employee.” Despite the clear language limiting the duty to accommodate to employees and applicants, the Court stated that “an association with a physically disabled person is itself a disability.” Thus, the Court determined that because FEHA requires employers to reasonably accommodate the “disabled,” and the “disabled” includes those associated with the disabled, FEHA requires employers to reasonably accommodate those associated with the disabled.
The Court further held that there could be an inference of pretext because: (1) Plaintiff’s supervisor was aware that Plaintiff needed to finish his route early; (2) Plaintiff’s supervisor scheduled shifts well after Plaintiff needed to be home despite customer requests for Plaintiff to work his regular schedule; (3) Plaintiff’s supervisor scheduled other drivers on earlier shifts but did not explain why Plaintiff was needed on a later shift; and (4) company policy allowed for discipline other than termination. Thus, the Court determined that DHE failed to show it was entitled to summary adjudication.
In response to Plaintiff’s retaliation claim, DHE cited to Rope v. Auto-Chlor Sys. of Washington, 220 Cal. App. 4th 635 (2013) to argue that a request for reasonable accommodations does not constitute protected activity. The Court, however, held that Rope was overruled on that point by A.B. 987 which amended the California Fair Employment Housing Act to make clear that a request for reasonable accommodation on the basis of disability is a protected activity and that it is unlawful to retaliate against employees who request reasonable accommodations regardless of whether the request is granted. See Requesting Reasonable Accommodations is a Protected Activity – A.B. 987.
The Court further held that employees do not need to use “legal terms or buzzwords when opposing discrimination.” Instead, employees engage in a protected activity when they communicate concerns of unlawful activity. Because Plaintiff repeatedly complained about his new schedule, the Court held Plaintiff could support a retaliation claim.
The dissent argued that this case went “where no case has gone before;” made a non-disabled person disabled just by association, which was not supported by the plain language of FEHA; and Plaintiff could have instead taken intermittent family leave.
It is unclear whether the Court actually created a “new duty.” California employers with more than 50 employees are already required to address an employee’s association with the disabled under the Family Medical Leave Act and the California Family Rights Act. Assuming the Court created a “new duty,” it failed to provide any guidance on how to recognize and comply with this duty. As a result, questions remain on how far this case extends, and whether “associated” exceeds the parent-child relationship.
In sum, a review of the Castro-Ramirez opinion brings to mind the age-old adage “bad facts make bad law.” And, there is little doubt that DHE will seek further review. Indeed, on April 27, 2016 the Court granted a petition for re-hearing on whether the A.B. 987 amendments were properly applied.
Regardless, at this time, employers (and in particular those within the jurisdiction of the 2nd Appellate District) should carefully and thoughtfully proceed with employee requests for accommodation. Specifically, employers should:
- Train supervisors on how to spot requests for accommodations that may not be stated in legalese and may be couched as complaints, which should be taken seriously.
- Ensure that employees are trained to bring requests for accommodations to human resources and supervisors are trained to seek assistance from human resources when making accommodation decisions.
- Inform supervisors and human resources personnel of the approach taken by the Castro-Ramirez Court and advise that similar requests should be considered on a case-by-case basis to determine any and all obligations that may be triggered under applicable federal and state disability and leave laws.
- Consider whether reasonable requests can be accommodated even if there is no legal obligation to provide the same. Reasonably assisting employees through difficult times enhances employee morale and is ultimately good for business.