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California: A Request for Accommodation Alone Will Be Considered a “Protected Activity” for Purposes of Retaliation Under FEHA

Published by on January 9, 2016

A new amendment expands the protections afforded to employees under California’s Fair Employment & Housing Act (FEHA) and establishes new requirements for how employers should address both accommodation and discipline in the workplace.

In the summer of 2015, California Governor Jerry Brown signed Assembly Bill No. 987, which, as of January 1, 2016, amended California’s Fair Employment and Housing Act (Government Code section 12940 et seq.) (“FEHA”) to prohibit an employer from retaliating and/or otherwise discriminating against a person for requesting an accommodation of his or her disability or religious belief regardless of whether the request for accommodation was granted.

(Editor’s Note: A copy of Assembly Bill No. 987 can be found here: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB987.)

The new law abrogates the 2013 holding in Rope v. Auto-Chlor System of Washington, Inc., 220 Cal.App.4th 635 (2013), that a mere request for an accommodation, without more, does not constitute a protected activity sufficient to support a claim of retaliation in violation of FEHA.

In Rope, an employee requested a leave of absence so he could donate a kidney to his sister, but he was fired for poor performance two months before the surgery. The employee sued for associational disability discrimination under FEHA and for violation of the organ donor protection act pursuant to Labor Code 1510. 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 found that a simple request for accommodation was not a protected activity and rejected the employee’s retaliation claim. The court explained: “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.”

Starting in 2016, however, AB No. 987 now disposes of the Rope holding and expands the protection of FEHA to allow an employee to use a mere request for an accommodation as evidence of engaging in a protected activity for the purposes of bringing a retaliation and/or discrimination claim. See Govt. Code §§ 12940(l)(4), 12940(m)(2).

Welter Insight:

AB No. 987 further broadens the protections of FEHA and will no doubt result in additional retaliation claims by employees based on making requests for accommodation. Employers must train their supervisors and human resources personnel to identify, evaluate, and document (in writing) any and all requests for accommodation made by employees since such requests will now constitute a protected activity for FEHA claims.

Prior to taking any adverse employment action against an employee, employers must be aware if the employee had previously requested an accommodation for a disability or religious belief.

Even if an employee’s requested accommodation for a disability or religious belief had previously been approved, the employer must have written documentation of the employee’s poor work performance to establish a legitimate, non-discriminatory and non-retaliatory reason for termination (or other adverse employee action). Employers should also update their discrimination and retaliation policies and training materials to include the new language regarding requests for accommodation provided in AB No. 987.

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