Section 12940(h) of California’s Fair Employment and Housing Act (FEHA) provides that it is illegal for an employer to retaliate against an employee who has opposed any practices that violated the FEHA. Section 12940(m)(2), enacted in 2015, further provides that it is illegal for an employer to retaliate or otherwise discriminate against a person for requesting accommodation for a disability. That protection applies regardless of whether the request for accommodation was granted or not.
Pursuant to these sections, employers violate California law if they retaliate against an employee who requests an accommodation. That is true both in cases where the employer grants the accommodation and in cases where the accommodation is denied. If the employee has a reasonable belief that the way in which her request for accommodation was handled was unlawful, and complains about it, and is retaliated against for doing so, that is also a violation of the FEHA.
The interplay between these sections was explored in Martinez v. Costco Wholesale Corporation (S.D. Cal. 2020) 481 F.Supp.3d 1076. There, the plaintiff had requested accommodations involving her work-related travel to Mexico. The employer denied her requests, which she opposed. The employer then allegedly retaliated against her for requesting the accommodations and for complaining when her requests were denied. The court concluded that the plaintiff had sufficiently alleged that she had engaged in a protected activity under the FEHA and denied the defendant’s motion for summary adjudication on the plaintiff’s claim for retaliation.
In Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, the court considered the related question of whether notifying an employer of a medical condition, without more, constituted a protected activity under the FEHA. There, the plaintiff had notified the University of California, her employer, that she had a heart condition. The court found that merely providing such notice was not protected activity under the retaliation provisions of the FEHA because it did not involve engaging in opposition to any practices forbidden under the FEHA. Nor did it involve the filing of a complaint, testifying, or assisting in any proceeding under the FEHA.
To be clear, however, while such notification may not constitute protected activity for the purposes of a retaliation claim, it may trigger a duty on the part of the employer to engage in an interactive process in order to determine whether there are reasonable accommodations available that could assist the employee. See Govt. Code § 12940(n). The duty to engage in that process will be explored further in other posts on this blog.
Finally, in Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, the court addressed the question of whether a plaintiff’s support for the rights of the disabled community, as well as his opposition to the elimination of a program that benefitted that community, were protected activities under the FEHA. The court found that the actions that the plaintiff opposed were not violations of the FEHA, which was fatal to his claim: “That [plaintiff] opposed what he viewed as unwise or even improper actions by the Department is not enough to make his opposition a protected activity.” 5 Cal.App.5th at 382.
If you have questions about reasonable accommodations or retaliation in the workplace, please feel free to contact the attorneys at Hunter Pyle Law. We can be reached at (510) 444-4400 or at firstname.lastname@example.org.
 Prior to that amendment, courts had held that the FEHA did not prohibit retaliation against employees for requesting accommodations. See Rope v. Auto–Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652–653 (Under FEHA and related regulations, “a mere request—or even repeated requests—for an accommodation, without more,” was not protected activity.)