Update 9/4/16: On August 29, 2016, the Court of Appeal issued an opinion on rehearing that retreated from its prior holding that the FEHA creates a duty to provide reasonable accommodations to an applicant or employee who is associated with a disabled person. However, the opinion still holds that the trial court erred in granting summary judgment to the defendant on the plaintiff’s claims for associational disability discrimination, failure to prevent discrimination, retaliation, and wrongful termination in violation of public policy. The court indicated that, given that the plaintiff has abandoned his failure to accommodate cause of action, it would not decide the point. It noted, however, that “when section 12940, subdivision (m) requires employers to reasonably accommodate ‘the known physical … disability of an applicant or employee,’ read in conjunction with other relevant provisions, subdivision (m) may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person.” Because the cause of action was abandoned, “[w]e only observe that the accommodation issue is not settled and that it appears significantly intertwined with the statutory prohibition against disability discrimination. . . .” I leave the below analysis as a discussion of what could have been a dramatic expansion of rights for California workers who care for disabled relatives, reflecting an issue that continues to remain undecided for now.
A new case—Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 246 Cal.App.4th 180—dramatically expands the rights of California employees who care for disabled relatives. It holds that the California Fair Employment and Housing Act (FEHA) creates a duty for employers to provide reasonable accommodations to an employee who is associated with a disabled person.
Background
Employees with disabilities have long been protected in the workplace, including by the FEHA and by the Americans with Disabilities Act (ADA). They are protected from discrimination, retaliation, and harassment based on their disabilities. In addition, employers must take affirmative steps to accommodate them to enable them to work. If a qualified employee with a disability requests a reasonable accommodation, the employer must provide it unless it “can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” There are many types of reasonable accommodations, such as job restructuring and changes to job duties, modified schedules, reassignments, use of specialized equipment, and medical leave.
Employees have also been protected from discrimination based on their relationship or association with a person with a known disability. This includes discrimination based on unfounded fears and stigmas (for example, against someone whose partner has HIV) and discrimination based on assumptions that employees might not be as available because of their caregiving obligations (for example, against a parent whose child has special needs).
However, until recently, employers’ obligations to provide workplace accommodations to people who care for those with disabilities were limited. The ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability. The California Family Rights Act (CFRA) and the Family and Medical Leave Act (FMLA) provide eligible employees with up to twelve weeks per year of unpaid leave. But only employees who work for large employers and meet certain eligibility requirements are covered, and the only thing that CFRA and FMLA provide for is time off from work.
New Protections for Caregiving Workers
In Castro-Ramirez v. Dependable Highway Express, Inc., the plaintiff Luis Castro-Ramirez sued his former employer, including for disability discrimination, failure to prevent discrimination, and retaliation under FEHA and for wrongful termination in violation of public policy. Castro-Ramirez has a disabled son who requires daily dialysis. He is the only one in his family who knows how to operate the dialysis machine for his son, and must be there to administer it each night. He disclosed this information to Dependable Highway Express (DHE) when he first interviewed for a truck driver job with them. The company agreed to accommodate his scheduling needs so that he could be home at night for his son’s dialysis. For several years, his supervisors honored that scheduling agreement. Then, a new supervisor came in. The supervisor rejected the schedule accommodation and terminated Castro-Ramirez for refusing to work a shift that prevented him from getting home in time for his son’s dialysis.
The trial court granted the defendant’s motion for summary judgment, effectively throwing out the case. The Court of Appeal reversed.
The Court of Appeal interpreted broadly the requirement that employers make a reasonable accommodation for the known disability of an applicant or employee:
The pertinent language makes it an unlawful employment practice “[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (§ 12940, subd. (m)(1).) Contrary to DHE’s assertion, this language does not limit the duty to accommodate to employees who personally experience physical disabilities. One must read the parts of a statutory scheme together and construe them in a manner that gives effect to each. (City of Huntington Beach v. Board of Administration (1992) 4 Cal.4th 462, 468, 14 Cal.Rptr.2d 514, 841 P.2d 1034.) And under section 12926, subdivision (o), “‘physical disability’ … includes a perception” that a person “is associated with a person who has, or is perceived to have,” a physical disability. An association with a physically disabled person is itself a disability under FEHA, in other words. Like the many other definitions set forth in section 12926, this definition of a physical disability applies “in connection with unlawful practices [under FEHA], unless a different meaning clearly appears from the context.” (§ 12926.) Accordingly, when section 12940, subdivision (m) says employers must reasonably accommodate “the known physical … disability of an applicant or employee,” the disabilities that employers must accommodate include the employee’s association with a physically disabled person.
The Court recognized that “FEHA’s language is simply not parallel to the ADA in this regard.” The Court referenced Government Code section 12926.1(a), which states that: “The law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act of 1990 (P.L. 101-336). Although the federal act provides a floor of protection, this state’s law has always, even prior to passage of the federal act, afforded additional protections.”
Conclusion
Employees who are associated with and care for others with disabilities continue to be protected from discrimination. In California, they can now ask for workplace accommodations to enable them to provide care. This is a significant expansion of their rights, and helps prevent employees from having to make a difficult choice between their jobs and caring for loved ones with disabilities who need their help.
