Archive | May, 2016

Discrimination Protection extended to those “affiliated” with an employee

27 May

As disability discrimination and accommodation claims continue to rise across the country, an appellate court in California may have just helped significantly expand such claims in the future by finding that an employee can maintain a suit for “associational” disability discrimination based on the disability of his son. Castro Ramirez vs. Dependable Highway Express Inc. California Court of Appeals, 2nd District issues April 4, 2016.

The key facts are as follows: The employer knew the employee’s son required a daily dialysis treatment that only the employee could administer. For several years, the employer scheduled the employee so that he could be home at night in time for the dialysis. However, that schedule accommodation changed when a new supervisor took over. The employee was ultimately terminated for refusing to work a shift that would have prevented him from performing his son’s dialysis on time. The appellate court held that the employee could pursue his claims for disability discrimination, failure to prevent discrimination, and retaliation in violation of the California Fair Employment and Housing Act (FEHA), as well as wrongful termination in violation of public policy.

In reaching this conclusion, the court confirmed that under both the California FEHA and the federal Americans with Disabilities Act (ADA), an employee may bring a claim for associational disability discrimination if an adverse employment action was substantially motivated because of an employee’s association with someone who has a disability. The court further expanded the law by holding that the California FEHA also creates a duty to provide reasonable accommodations to an employee who is associated with a disabled person (even though no such duty exists under the federal ADA).

Applying this law to the case at hand, the court found that it can be reasonably inferred that the employer (through its new supervisor) acted proactively to terminate the employee in order to avoid the inconvenience and distraction related to employee’s need to care for his disabled son. The court also stated that the employer stated reason for the termination – employee’s refusal to work the assigned shift – was a pretext because employer’s policies allowed for less severe discipline under such circumstances and because a customer had specifically asked the employee to work an earlier shift (such that there was no legitimate reason for assigning employee to a later shift).

This case presents yet another example of the many nuances that exist with disability discrimination cases. Furthermore, although this decision was technically based upon California law, the conclusions were reached by mostly interpreting federal law. Therefore, many of the concepts raised in this case could apply across the country. As always, it is a good idea to seek legal assistance whenever uncertainty exists related to any disability or accommodation issues

 

INTRODUCTION

When addressing the needs of applicants or employees with disabilities, California employers must be careful to comply with two laws: (1) the federal Americans with Disabilities Act (ADA); and (2) the disability provisions of the California Fair Employment and Housing Act (FEHA). Because decisions relating to accommodation of disabilities are fact-intensive and must be made on a case-by-case basis, employers need to take care to ask questions and determine all of the facts of a situation, and in any difficult instance, consult an experienced human resources advisor or employment attorney, because a violation of an employee’s rights can be both costly and complicated.

WHICH EMPLOYERS ARE COVERED?

The ADA applies to all employers with 15 or more employees. The FEHA applies to employers with five or more employees. Part-time employees are included in determining whether an employer has the requisite number of employees to trigger coverage under these laws.

WHO IS DISABLED?

The key to compliance with the ADA and related FEHA provisions is to understand who is considered disabled. Under the ADA, disabled persons are those who have physical or mental impairments that substantially limit their ability to perform one or more major life activities, such as breathing, walking, working, seeing, hearing, performing manual tasks, caring for oneself, etc. In California, the definition of disability is much broader. People are considered disabled if they are limited in any way in performing a major life activity – they do not have to be substantially limited. People also are considered disabled if they have a history of such an impairment, such as a history of mental illness, or if they are regarded as having such an impairment, someone who is assumed to be disabled even if the assumption turns out to be wrong. . The ADA and FEHA also prohibit discrimination against individuals who are related to or associated with disabled individuals because of that relationship or disability.

When evaluating whether a California employee – or a person who is relying on them for care such as a child, spouse or other close family member and thus “associated” with them for FEHA protection – is limited in performing a major life activity, the employer must base that evaluation on the employee’s (or other person’s) condition without taking into account that person’s use of corrective medication or other corrective medical devices, such as glasses, prosthetics, etc. Because of California’s broad definition of disability, it is important for employers to understand that a large majority of California employees and those associated with them would likely qualify as disabled under state law, even though they would not be considered disabled under the ADA.

In general, any time an employee presents reports a medical need to be off of work, even if only for a few days, there is a reasonable chance that the employee will be considered “disabled” or affiliated with someone disabled and thereby invoking the protections of FEHA.

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