On Rehearing, Court of Appeal Slightly Retreats From Its Prior Decision Holding The FEHA Creates a Separate Duty to Provide Reasonable Accommodation to an Applicant or Employee Who is Merely Associated With a Disabled Person

 Castro-Ramirez v. Dependable Highway Express, Inc. (Cal. App. 2d Dist. August 29, 2016) 2016 Cal. App. LEXIS 722

In its new decision, the Court of Appeal did not decide the issue of whether the FEHA establishes a separate duty to reasonably accommodate employees who “associate with” a disabled person because the issue was not presented on appeal.  Nevertheless, the ruling strongly implies the FEHA “may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person,” thereby suggesting it may find such a duty in a future case that presents the issue.

The employee was hired as a truck driver in 2010, at which time he informed his employer he had a disabled son who required dialysis on a daily basis that the employee was responsible for administering.  Although his first two managers accommodated, a third supervisor took over and fired the employee after he refused to work a shift that would interfere with his ability to care for his son.  The employee thereafter sued alleging, inter alia, a “seldom-litigated” claim for associational disability discrimination in violation of the Fair Employment and Housing Act (FEHA) and retaliation in violation of the FEHA.  Summary judgment was granted in the employer’s favor and the employee appealed.

To establish a prima facie case of disability discrimination, the plaintiff must show he:  (1) suffered from a disability; (2) he was otherwise qualified to do his or her job, with or without reasonable accommodation; and (3) he was subjected to an adverse employment action because of the disability. 

As to the first element, the appellate court held the “disability” from which the employee suffered was his association with a disabled person, as recognized by the language of the FEHA.

As to the second element, the appellate court slightly tempered its prior holding that employers have a duty under the FEHA to provide reasonable accommodations (such as a modified schedule to administer dialysis to a family member) to an applicant or employee who is not himself disabled, but rather is merely associated with a disabled person.  Instead, on rehearing, the appellate court held the FEHA may be interpreted to require accommodation based on the employee’s association with a disabled person (which essentially endorses the court’s prior position).

As to the third element, although the appellate court began by recognizing three general categories of motive in associational disability discrimination cases (“expense,” “disability by association,” and “distraction”), it again found the list non-exhaustive and held a neat fit is not required so long as a jury may infer the requisite discriminatory motive.  The court found there was a triable issue regarding the employer’s motive, given the supervisor knew of the employee’s needs, shortly thereafter scheduled the employee for an inconvenient shift even though other shifts were available, lied about why the employee could not be scheduled for one of the earlier shifts, and fired him after a one-time refusal to work.  Accordingly, the appellate court held the employer failed to show it was entitled to summary adjudication of the association disability discrimination claim.

Regarding the employee’s retaliation claim, the court likewise found a question of fact about whether he was terminated for engaging in protected activity.  The court cited evidence the employee had complained to both his supervisor and his manager on more than one occasion about his schedule changes, when both knew he required earlier hours to administer dialysis to his son in the evening, and he was terminated a month after his first complaint and on the heels of his last two complaints.  Ultimately, the court concluded a trier of fact could reasonably find the employee’s repeated complaints constituted opposition to the denial of an accommodation to his schedule.  As such, the appellate court also denied summary adjudication on the retaliation claim.