What is a “Disability” under California Law

Under California law, a “disability” is broadly construed. In the employment law context, an individual qualifies as having a “disability” under California law if the individual:

1. Has a physical disability, mental disability, special education disability, or medical condition that limits one of the major life activities of the individual; and

2. Has a record or history of the disability or condition that is “known to the employer.”

Once a court finds that an individual has a qualifying disability under the first prong, it will then consider whether that disability “limits” one of their “major life activities.” This is a significant difference from the Americans with Disabilities Act under federal law, which requires a disability to “substantially limit” a major life activity.

Under California’s “limits” standard, the disability must make a major life activity “difficult” for the employee. California law identifies various “major life activities,” including physical, mental, and social activities, as well as working.

As to the second prong, having a record or history of the disability or condition “includes previously having, or being misclassified as having, a record or history of a mental or physical disability or special education health impairment of which the employer or other covered entity is aware.” However, generally speaking, all that is required for notice is that that the plaintiff show that the individual who took the adverse action knew about the plaintiff’s disability. See Soria v. Univision Radio L. A., Inc., 5 Cal.App.5th 570, 592 (2016) (citing Avila v. Continental Airlines, Inc., 165 Cal.App.4th 1237, 1247 (2008)). For example, an employer can know about a disability if the employee tells the employer, if the employer observes the condition, or is told about it by a third party. On the other hand, simply calling in to work sick without more is not sufficient to prove an employer’s knowledge of a disability. See Avila v. Continental Airlines, Inc., 165 Cal.App.4th 1237, 1249 (2008).

California law also protects individuals from discrimination due to perceived or potential disabilities. This includes when an individual is erroneously or mistakenly believed to have a physical or mental condition that limits a major life activity. A “perceived potential disability” means the condition has no present disabling effect but may, at some point, become a mental or physical disability or special education disability. Perceived or potential disabilities are discussed in more detail here. In some circumstances, California law also protects individuals who are associated with a person who has or is perceived to have a disability. Associational disability claims are discussed in more detail here.

What is a Reasonable Accommodation under California Law?

Under California law an employer must make reasonable accommodations for the known disability of an employee or applicant. Cal. Gov’t Code §12940(m); Dep’t of Fair Emp. & Hous. v. Lucent Technologies, Inc., 642 F.3d 728, 743 (9th Cir. 2011). A reasonable accommodation under the Fair Employment and Housing Act (“FEHA”) is “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4^th 952, 974 (2008).

Employers are required to make a reasonable accommodation for the “known physical or mental disability of an applicant or employee” unless doing so would produce an undue hardship to the employer’s operation. Cal. Gov’t Code § 12940 (m)(1). “Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors: (1) The nature and cost of the accommodation needed. (2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility. (3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities. (4) The type of operations, including the composition, structure, and functions of the workforce of the entity. (5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.” Atkins v. City of L.A., 8 Cal. App. 5th 696, 733 (2017) (citing Cal. Gov’t Code § 12926(u)).

What does reasonable accommodation mean, in practice? The FEHA provides specific examples of possible reasonable accommodations, including the following:

(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.

(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Cal. Gov’t Code § 12926(p).

The California Code of Regulations (“CCR”) provides a list of possible accommodations, including reasonable leaves of absence and reassignment to an alternate, temporary or vacant position in certain circumstances. Cal. Code Regs. tit. 2, § 11068(c)-(d).

In sum, there are many forms of reasonable accommodation and employers must make an effort to explore different alternative forms of reasonable accommodation. The failure to provide reasonable accommodation is common across different industries.

The workers’ rights attorneys at Hunter Pyle Law have handled failure to provide reasonable accommodation cases throughout California. If you have questions about your rights in the workplace, please feel free to contact us in order to utilize our free and confidential intake process. We can be reached at inquire@hunterpylelaw.com or at (510) 444-4400.

Employers Can Deny Disability Accommodations if They Can Prove Undue Hardship

In California, employers are required to provide reasonable accommodations for applicants or employees with physical or mental disabilities.[1] However, an employer does not have to provide accommodations if those accommodations create an “undue hardship” for the employer.[2] California law defines undue hardship as an “action requiring significant difficulty or expense.”[3]

When deciding whether a potential accommodation would create an undue hardship for the employer, courts consider the five factors laid out in the Fair Employment and Housing Act:

(1) The nature and cost of the accommodation;
(2) The finances of the facilities involved in the potential accommodation, the number of employees at the facility, and the impact of the potential accommodation on the facility;
(3) The overall finances of the employer, the overall number of employees, and various factors regarding its facilities;
(4) The employer’s operations; and
(5) The location of and relationship between facilities.[4]

In Atkins v. City of Los Angeles, the Second District Court of Appeal held that the City of Los Angeles failed to demonstrate that reassigning five injured recruit police officers to light-duty administrative work would cause the city undue hardship.[5] The city argued that keeping recruits on light-duty would have caused undue hardship because the recruits doing light-duty work were holding onto salaried positions that were intended for officers that would go out on the street within six months of entering the police academy.

The Atkins court was unpersuaded because the city did not offer any evidence to show that the expense of hiring additional recruits would have been “too great in relation to the city’s financial health” or that the city could not have met its public safety needs if plaintiffs remained in the light-duty program or if the city could not have hired additional recruits.[6] The court clarified that the employer must do more than simply assert it has economic reasons to reject a plaintiff’s proposed reassignment to demonstrate undue hardship. The employer must also show why and how those economic reasons would affect its ability to provide a particular accommodation.[7]

There is no single formula for determining whether a requested accommodation will result in undue hardship. Whether a particular accommodation will create an undue hardship for an employer is determined on a case-by-case basis and is “a multi-faceted, fact-intensive inquiry.”[8] Ultimately, the employer has the burden of demonstrating that an otherwise reasonable accommodation would result in an undue hardship on the employer.[9]

If you have questions about your disability rights in the workplace in California, please feel free to contact the experienced attorneys at Hunter Pyle Law for a free and confidential initial intake. We can be reached at inquire@hunterpylelaw.com or at (510) 444-4400.

References

[1] Gov. Code § 12940, subd. (m)(1).

[2] Gov. Code § 12940, subd. (m)(1).

[3] Gov. Code §12926, subd. (u).

[4] Gov. Code §12926, subd. (u).

[5] Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 732, as modified on denial of reh’g (Mar. 13, 2017). 

[6] Id. at 735.

[7] Id. at 734.

[8] Id. at 733.

[9] Id., citing Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 126–127; Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 972.

The EEOC’s Guidelines on an Employer’s Duty to Provide Reasonable Accommodation

Under Title I of the Americans with Disabilities Act (“ADA”), individuals with disabilities are entitled to changes in the work environment, also known as “reasonable accommodations,” that allow them to enjoy the same opportunities in the workplace as individuals without disabilities.  The Equal Employment Opportunity Commission (“EEOC”) has issued enforcement guidance on reasonable accommodations under the ADA in order to address the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodations.  Highlights from the guide are set forth below. 

Employers are under a statutory duty to provide a reasonable accommodation in order to remove barriers that could prevent individuals with disabilities from performing jobs they might otherwise be able to do. These barriers might be physical or procedural.  However, an employer does not have to provide personal use items that an employee needs both on and off the job as a reasonable accommodation.  Examples of this include wheelchairs and hearing aids.   

Employers must provide accommodations whether employees with disabilities work part-time, or are considered probationary.  

There are three types of reasonable accommodations under the ADA: 

1. Modifications to the job application process that allow qualified applicants with disabilities to be considered for a position; 
2. Adjustments to the workplace or environment that allows an individual with a disability to perform the essential functions of a position; and 
3. Modifications that permit an employee to enjoy the same benefits and privileges of employment as individuals without disabilities.  

Examples of accommodations could include making facilities accessible; restructuring jobs; modifying schedules, work equipment or policies; or reassigning an employee to a vacant position. The important consideration is that the accommodation enables the individual with a disability to perform the essential functions of a job.  

An employer is excused from providing a reasonable accommodation only if it can demonstrate that such a change would cause “undue hardship.”  Undue hardship is generally characterized by excessive expense or significant difficulty or disruption to the employer.  This must be evaluated on a case-by-case basis.   

When asking for a reasonable accommodation, an employee must inform his or her employer about the need for an adjustment or change to the workplace and state that it is due to a medical condition. Simply requesting a new chair because it is “not comfortable” would not constitute a request for a reasonable accommodation; instead, the employee would need to link the need for a new chair to a medical condition, such as chronic back pain.  These requests can either be oral or written. 

Another individual, such as a family member or healthcare practitioner, can also request an accommodation on behalf of an employee with a disability.   

After a request for an accommodation is made, an employer is then entitled to ask questions and explore solutions.  Under the ADA, the employer can ask about the nature of the disability and functional limitations in order to survey and identify an effective accommodation.  While not required to, the employer has the option of requiring documentation that its employee has an ADA disability, and that the disability necessitates an accommodation.  However, the scope of an employer’s inquiries is limited to this, and cannot, for example, require providing complete medical records.  An employer can also ask a worker requesting an accommodation to sign a limited release allowing the employer to submit a list of specific questions to a medical provider. 

The employee can obtain the requested information from his or her health professional of choice.  However, if that healthcare provider is unable to substantiate the existence of an ADA disability and to verify the need for an accommodation, the employer should first state that the information is insufficient and allow the employee to obtain a compliant note. If this fails, the employer can thereafter ask the employee to submit to a medical examination conducted by the employer’s health professional, but the examination is limited to establishing the existence of the disability and the functional limitations that would require reasonable accommodations. The employer would also have to pay any exam it orders from a provider it designates.  

Employers are prohibited from requesting any documentation if the employee’s disability and need for an accommodation is obvious or 2) the individual has provided sufficient information to demonstrate that he or she has an ADA disability and requires a reasonable accommodation.  

Some employers do not require medical notes.  In this situation, the employee should be able to describe what situations or problems are creating barriers.  Discussing and exploring potential reasonable accommodations is referred to as “engaging in the interactive process.”  During this process, the employer has the prerogative of choosing the accommodation, as long as it is effective.   

Once an employee requests an accommodation, the employer must respond expeditiously.  Ignoring a request, and unnecessarily delaying a response may result in a violation of the ADA.  If the employee needs a reasonable accommodation to perform an essential function and the employee refuses an effective accommodation, he or she may not be qualified to stay in the job.  

Disabled Prison Guard Wins his Third Appeal Against the California Department of Corrections and Rehabilitation

Courts can award attorneys’ fees to the prevailing plaintiff in a discrimination or harassment claim brought under the Fair Employment and Housing Act (FEHA).  These attorney fee awards are designed to incentivize and reward a plaintiff’s counsel for litigating a civil rights case that is generally taken on a contingency fee basis and therefore has inherent risks.  Trial courts first calculate the lodestar amount, which is the product of the hours spent and the prevailing hourly rate of attorneys in the community conducting similar non-contingent litigation.  Then courts can increase this amount by adding a multiplier or increasing the lodestar amount by looking at various factors, such as the risk of non-payment, the public interest in advancing civil rights cases, the complexity of the issues involved, and the skill of the attorneys.  (more…)

Proving Discrimination and Harassment Cases in California

In a victory for workers’ rights, the California Legislature enacted California Government Code section 12923 as a statement of legislative findings and purpose regarding harassment and discrimination claims brought under the Fair Employment and Housing Act (“FEHA”). The legislation was enacted to “provide all Californians with an equal opportunity to succeed in the workplace.” The Legislature noted section 12923 “should be applied accordingly by the courts.” The legislation went into effect on January 1, 2019. Accordingly, courts have cited section 12923 in analyzing employees’ discrimination and harassment cases throughout the past year.

Employees who have suffered workplace harassment and discrimination should be aware of section 12923’s impact in five different ways:

• Section 12923 substantially modified the severe or pervasive standard for harassment claims to require a reasonable person to find “that the harassment so altered working conditions as to make it more difficult to do the job.” Gov. Code § 12923(a).

Prior to this modification, employees were required to prove that the harassing conduct unreasonable interfered with their work performance. Now employees do not need to prove that their productivity declined to establish that the harassing conduct was severe or pervasive.

In response to section 12923, the Judicial Council of California Civil Jury Instructions (“CACI”) revised its jury instructions to define what conduct is considered “severe and pervasive” to establish a harassment claim. The revision added: “[Name of plaintiff] does not have to prove that [his/her] productivity has declined. It is sufficient to prove that a reasonable person who was subjected to the harassing conduct would find that the conduct so altered working conditions as to make it more difficult to do the job.” See CACI No. 2524.

Accordingly, employees can prevail by showing that the harassing conduct altered their working conditions so as to make it more difficult to do the job. See Hyams v. CVS Health Corporation, No. 18-cv-06271-PJH 2019 WL 6827292, at *5 (N.D. Cal., Dec. 12, 2019) (granting defendant’s motion for summary judgment because the plaintiff did “not declare or otherwise present any evidence that the statements “altered working conditions as to make it more difficult to do the job.”).

• Section 12923 clarified that a “single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment.” Cal. Gov. Code § 12923(b).

Prior to this modification, courts consistently held that harassment is not pervasive if it is occasional, isolated, sporadic or trivial. However, in response to section 12923, CACI revised its jury instructions in defining what conduct is considered “severe and pervasive” to establish a harassment claim. The 2019 revision added: “[A single incident can be sufficiently severe or pervasive to constitute harassment.]” See CACI No. 2524.

Since 2019, courts have applied section 12923(b) accordingly in denying pre-trial dispositive motions. See Milner v. TBWA Worldwide, Inc., No. CV 19-08174 DSF (AFMx), 2019 WL 5617757, at *4 (C.D. Cal., Oct. 30, 2019) (“Under California law, even one instance of harassment can be sufficient” to establish a FEHA age-based harassment claim); seealso Doe v. Wells Fargo Bank, N.A., No. CV 19-5586-GW-PLAx, 2019 WL 3942963, at *6 (C.D. Cal. Aug. 19, 2019) (citing Cal. Gov. Code § 12923(b) in explaining “what Defendants fail to recognize is that even one instance of harassment can be sufficient” for a viable FEHA harassment claim against an individual defendant.).

• Section 12923 directs courts to consider the totality of the circumstances in determining a hostile work environment and specifically rejects the “stray remarks” doctrine. Cal. Gov. Code § 12923(c).

The Legislature explained, “a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.” See Concialdi v. Jacobs Engineering Group, No. CV 17-1068 FMO (GJSx), 2019 WL 3084282, at *10  (C.D. Cal. Apr. 29, 2019) (denying Defendant’s motion for summary judgment for age-based discrimination even if Plaintiff’s cause of action was based on stray remarks not made in the direct context of the decisional process.”).

• Section 12923 makes it clear that the same legal standard should apply to all sexual harassment cases regardless of the type of workplace. Cal. Gov. Code § 12923(d).

The Legislature elaborated: “It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past.” Id.

• Section 12923 explained that: “Harassment cases are rarely appropriate on summary judgment” and agreed that “hostile working environment cases involve issues ‘not determinable on paper.’” Cal. Gov. Code § 12923(e).

This provision is especially important because employers often file dispositive motions in harassment cases. See Loi Ngo v. United Airlines, Inc., No. 19-cv-04277-JCS, 2019 WL 6050832, at *6 (N.D. Cal. Nov. 15, 2019) (citing section 12923(e) in granting plaintiff’s motion for remand finding plaintiff did not fraudulently join an individual defendant.).

Employees should keep these powerful provisions in mind when pursuing discrimination and harassment claims under FEHA.

If you have been subject to harassment or discrimination in the workplace, please feel free to call the experienced workers rights attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process.  We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.

Court of Appeal Rules in Favor of Gay CHP Veteran Suing for Sexual Orientation Discrimination

An openly gay California Highway Patrol (CHP) officer, Jay Brome, brought suit against his employer after enduring twenty years of harassment and discrimination.  The trial court dismissed his claims on the grounds that they were not filed within the statute of limitations.  The California Court of Appeal for the First District reversed the trial court’s ruling in a unanimous opinion, holding that equitable tolling could extend Mr. Brome’s statute of limitations.  (Brome v. California Highway Patrol, A154612, filed January 28, 2020.) (more…)

Disabled Psychologist’s Claims for Discrimination, Harassment and Retaliation against Department of Corrections Fail Despite Providing Doctor’s Notes

As an employee, there may be times when you need an accommodation in the workplace due to a disability.  Sometimes, your employer may ask for a doctor’s note in the course of engaging in the interactive process.  How specific do the doctor’s notes need to be?  A recently published case provides some insight into this question.

Plaintiff John Doe began working at Ironwood State Prison as a psychologist in 2012.  In 2013, he requested to work in a quiet place that allowed him to focus and concentrate.  (more…)

Intolerable Working Conditions Support a Nurse’s Constructive Termination Claim

A 54-year old Filipino woman, Shirley Galvan, worked for Dameron Hospital Association (Dameron) as a nurse for approximately twenty-five years.  In 2011, Doreen Alvarez became Ms. Galvan’s supervisor and allegedly began harassing Ms. Galvan and other Filipino employees.  Ms. Alvarez commented that the Filipino employees could not speak English, had thick accents, made too much money, were too old, and had been at Dameron too long.  Ms. Alvarez threatened to “clean house” and repeatedly humiliated the Filipino employees by making derogatory statements about their accents, level of education, and work performance.  Ms. Galvan went out on stress leave due to the anxiety she was experiencing as a result of this harassment.  She was constructively terminated in 2014.

Ms. Galvan brought suit against Dameron and Ms. Alvarez, alleging that she had been discriminated against and harassed on the basis of her age and national origin, and constructively terminated in violation of the California Fair Employment and Housing Act. (more…)

California Court of Appeal Addresses Meaning of “Physically Disabled”

The California Court of Appeal recently issued an opinion that looked into whether an employee has a disability for purposes of the Fair Employment and Housing Act (FEHA). Ross v. County of Riverside, D075106 (published June 10, 2019).  Plaintiff Christopher Ross worked for the County of Riverside as a deputy district attorney.  In 2013, Mr. Ross discovered that he might have a serious neurological condition.  (more…)