Like the federal Americans With Disabilities Act (ADA), California’s Fair Employment and Housing Act (FEHA) protects applicants and employees from discrimination based on physical or mental disability. Both laws require an employer to reasonably accommodate an employee's disability. They further prohibit discrimination based on an employee’s associations. The ADA prohibits associational discrimination – that is, discrimination “because of the known disability” of an individual with whom someone “is known to have a relationship or association.” California goes even further on that point, prohibiting discrimination on the basis that an individual “is associated with a person who has, or is perceived to have” a disability.
The California Court of Appeal’s new decision in Castro-Ramirez v. Dependable Highway Express, Inc. may point the way for California to take accommodation obligations in a new and unknown direction. Over a strong dissent, it raised the specter of an employer somehow having to accommodate an employee’s association with a person with a disability. In a decision in this case last April, the court held that FEHA requires reasonable accommodation for an applicant or employee associated with a disabled person. The court later granted rehearing and further briefing, resulting in its new decision. There, the court backed away from its earlier holding, claiming this time that it did not expressly decide the accommodation issue in its new decision. However, the majority recognized that the FEHA “may reasonably be interpreted” to require such accommodation. The decision, however, also warrants attention for its rulings on associational discrimination and retaliation.
The case involved a driver whose son required daily home dialysis treatment. The employee administered the dialysis. For several years, his employer accommodated the driver’s needs by scheduling his shifts early enough for him to get home to handle his son’s treatments. Later, a new supervisor scheduled the driver’s shifts later, despite the driver’s requests. Finally, the supervisor assigned a shift too late for the driver to be home in time to care for his son. The employee asked for an earlier schedule that day, or to take the day off work. The supervisor refused. When the driver did not work the assigned route, the employer fired him.
The employee abandoned his reasonable accommodation claim on appeal. As a result, the court stated that “we do not decide whether the FEHA establishes a separate duty to reasonably accommodate employees who associate with a disabled person.” No ADA or California case has held that employers have such an accommodation obligation.
Yet, while not deciding this question, the court expounded on it. The court acknowledged that the FEHA’s reasonable accommodation requirement “does not expressly refer to individuals other than an applicant or employee.” It noted that the law’s definition of “physical disability,” refers to association with a person who has, or is perceived to have, a physical disability. Mixing these provisions together, the court offered a remarkable interpretation: “In other words, association with a physically disabled person appears to be itself a disability under FEHA.” From there, it observed that an employer’s reasonable accommodation obligation “may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person.”
The court’s majority concluded that “the accommodation issue is not settled.” Yet, the majority still discussed the issue, and seemed to rely on it, at least indirectly. Despite the majority claiming it did not decide whether accommodation of an employee’s associations is required, the dissenting justice charged that “the majority in effect has done just that.” The majority allowed the employee’s disability discrimination claim to proceed. As the dissent reasoned, “unless there is a duty to adjust the work schedule of a nondisabled employee to accommodate the needs of a disabled associate, there is no evidence from which to infer the defendant employer here discriminated against plaintiff when it assigned a shift that did not meet those needs, and fired plaintiff for refusing the assignment.”
The court’s majority allowed the employee to proceed with disability discrimination and retaliation claims. Under the ADA, courts have recognized possible associational discrimination claims in three categories, as in the following examples: (1) “expense,” in firing an employee because the employee’s dependent has a costly condition covered by the employer’s health plan; (2) “disability by association,” in which an employer fears an employee may develop an infectious disease that an associate has, or a genetic condition that blood relatives have; or (3) “distraction,” when an employee is inattentive at work because a family member or associate has a disability requiring attention.
In this case, the majority held that these types of discrimination are only examples, rather than an exhaustive list, of the circumstances in which the law may prohibit associational discrimination based on disability. Under California law, it held the employee here could pursue a claim for association disability discrimination. Under the circumstances, the court majority determined that a jury could find that the driver’s “association with his disabled son was a substantial motivating factor” in the termination decision. As a “reasonable inference,” the court held a jury could find that the supervisor “wanted to avoid the inconvenience and distraction” that the employee’s need to care for his son posed, so he “acted proactively to avoid the nuisance plaintiff’s association with his disabled son” would cause. The termination for refusing to work the one shift could be a “pretext” for the supervisor’s desire “to be rid of someone” who made his job “harder.”
In addition, the court allowed the employee to pursue a retaliation claim. The purported protected activity, for which the employee allegedly suffered retaliation, was the employee’s “complaints” to his supervisor and a manager about changes to his schedule. The court’s majority concluded that they “constituted opposition to the denial of an accommodation of his schedule.” It held that the complaints could be protected, even if the employee did not mention “unlawful” or “reasonable accommodation." Although the court claimed not to decide whether the employee had any accommodation obligation, it held that an employee’s “good faith belief” that the employer “was acting unlawfully was sufficient.” Finally, the close timing between the complaints and the termination suggested a causal relationship, according to the court.
The new decision in Dependable Highway Express is remarkable for suggesting (if not holding) that an employer may have a legal obligation to accommodate an employee’s association with a person with a disability. No other court has recognized such a duty. This issue likely will remain on the horizon until resolved finally. If such an accommodation obligation exists, it poses a potential minefield for employers. While it is one thing to reasonably accommodate an employee’s disability, potentially having to accommodate the disability of an employee’s associate may pose quite another difficult matter. There are no indications in terms of what such an accommodation requirement would entail.
Even without having to accommodate an employee’s association with a disabled person, employers should recognize that other existing laws may require granting an employee time off to care for family members. Paid sick leave laws are one example. Some situations that require an employee’s absence to provide care to certain family members may qualify for family and medical leave under federal or state law, including intermittent leave. (The employee in Dependable Highway Express argued a California Family Rights Act claim, which the court did not address.)
The decision serves at least as a reminder to employers that the ADA and California law protect employees from discrimination based on association with a disabled person. (California’s FEHA also protects employees from discrimination based on association with someone and that person’s other protected characteristics, while courts interpret federal law the same way concerning race discrimination). Although an accommodation of such association may not be required, this new case raises questions about the scope of this discrimination protection. It protected not only the fact of the relationship from discrimination, but also perhaps particular scheduling that the employee sought because of that relationship.
Finally, the decision is a reminder of the extent of protection against retaliation. In addition, effective January 1, 2016, California law now protects a request for reasonable accommodation from retaliation or discrimination.