California Labor & Employment Law Review Vol. 35 No. 2
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Volume 35 No. 2 March 2021 Official Publication of the California Lawyers Association Labor and Employment Law Section Co-founder of Levin & Nalbandyan, LLP, partner Jacob Nalbandyan heads the civil litigation MCLE Self-Study: department focused on labor and employment law. ASSOCIATIONAL REASONABLE He argued for plaintiff- appellant in Castro-Ramirez ACCOMMODATIONS? v. Dependable Highway Express, Inc., an associational DEFINITELY MAYBE! disability discrimination case. Kelly (Ka In) Chan is a member of the employment litigation department at Levin & Nalbandyan, LLP, where she practices labor By Jacob Nalbandyan and Kelly (Ka In) Chan & employment law. Passionate about justice, she works hard to make sure her clients get rightfully compensated, and volunteers in multiple legal clinics. INTRODUCTION In California, the Fair Employment and Housing Act (FEHA)1 affords wide protections to employees As associational disability discrimination laws take with disabilities. It imposes strict affirmative duties on shape in California, we must familiarize ourselves with the employer in this regard, all of which are aimed at their interplay with related reasonable accommoda- maintaining a healthy continuity of employment both tion and interactive process laws. This is particularly for the interests of employees and employers. In this pressing in light of the current lack of guidance from regard, the Legislature has declared these protections California courts. To examine the state of affairs a matter of public policy,2 which must, therefore, be pertaining to the latter two in the context of asso- at the heart of the discussions surrounding related ciational disability, this article will look at the relevant statutes and the cases related to associational disability legal issues. discrimination. By dissecting relevant cases and the A more complex issue arises in this legal space, underlying statutes, the authors conclude that because however, when it comes to whether the same associational disability discrimination protections protections apply to an employee who is not disabled exist, so must related protections against the failure but is, instead, merely associated with a disabled to reasonably accommodate and participate in an person but needs a reasonable accommodation, i.e., interactive process. flex schedule or intermittent leave. — Inside the Law Review — 1 Associational Reasonable Accommodations? Definitely Maybe! 5 Top 2020 California Trade Secrets Decisions 9 California Employment Law Notes | 13 Wage and Hour Case Notes 16 NLRA Case Notes | 19 Public Sector Case Notes | 23 Mediation Tips and Arbitration Bits 26 Fresh Perspectives: A Deposition Toolkit for the New Lawyer 28 Cases Pending Before the California Supreme Court 32 Message From the Chair Under federal law, the answer has become wheelchair- established that FEHA affords a is definitely no.3 But under bound, necessitating that cause of action for associational California law, presently the he occasionally arrive late disability discrimination.9 answer is definitely maybe. to or leave early from work. There, an employee requested He approaches the HR a paid leave of absence to donate RELEVANT STATUTES boss, Jane, who thinks to a kidney to his sister, and the 10 herself: “I know I can’t fire employer terminated him. At the At the outset, FEHA’s anti- demurrer stage, the Rope court him because that might discrimination provision makes found a reasonable inference that constitute associational it unlawful for an employer to the employer committed asso- disability discrimination, terminate or discriminate against ciational disability discrimination, 4 an employee because of disability. but there’s nothing on because it “acted preemptively to It also makes it unlawful for the books requiring me to avoid an expense stemming from an employer to “fail to make accommodate him either.” [the employee’s] association with reasonable accommodation for his physically disabled sister.”11 The So what should Jane do? Let’s the known physical or mental court held the employee had met explore what is most prudent, disability” of an employee or to his burden “to show the adverse keeping in mind the State’s refuse to engage in an interactive employment action occurred process in search of reasonable public policy. under circumstances raising a accommodations.5 So far, from reasonable inference that the its plain language, FEHA seems RELEVANT CASES disability of his relative or associate to protect only those who are Unfortunately, an examination was a substantial factor motivating themselves disabled, right? 12 of the legislative history of the employer’s decision.” Not so. Enter Government Rope did not discuss the the relevant statutes we have Code section 12926(o), which applicability of FEHA’s interactive examined so far reveals nothing states, in relevant part, that process and reasonable accom- pertaining to the intent of the “‘disability’ . includes . that the modation provisions to employees person is associated with a person Legislature. The FEHA is silent associated with disabled persons. who has, or is perceived to have” on whether the interactive However, key facts presented in a disability.6 process and reasonable accom- that case turned on a denial of Accordingly, by the virtue modation apply equally to reasonable accommodations for of plug-and-play analysis, while associational disability.8 time off not because of one’s own FEHA protects an employee’s Nonetheless, there are several disability, but that of another. This actual disability, it also protects cases in the associational disability holding supported an associational that employee’s association with discrimination context that disability discrimination finding another who has a disability even indirectly shed light on the issue when it led to job loss. though the employee does not. at hand. Acutely though, at the KOUROMIHELAKIS V. HARTFORD The California Court of Appeal core of each of those cases, and FIRE INS. CO. (D. CONN. 2014) has twice said so in the context of factually, is an employee’s need associational disability discrimina- for a reasonable accommoda- Kouromihelakis v. Hartford Fire tory firings, but has remained tion because of that employee’s Ins. Co. is another case with similar silent (somewhat) on the issue of association with a disabled person. facts in the District Court of Connecticut regarding the federal whether an employer must also Take note of how each Americans with Disabilities Act provide reasonable accommoda- played out. tions in this context by engaging (ADA). It ruled that a reasonable an interactive process.7 ROPE V. AUTO–CHLOR SYSTEM inference could be made that This silence has put both OF WASHINGTON, INC. (2013) the employee was discriminated California employers and employees against based on the association Rope v. Auto–Chlor System 13 in a conundrum, illustrated by the he had with a disabled person. of Washington, Inc. was the first following hypothetical: The employee alleged that published case in California he requested a change in hours Johnny has worked for XYZ, that discussed associational under the employer’s flex Inc. for three months and disability discrimination under time policy to accommodate just learned that his wife FEHA. In Rope, the court for his responsibilities to his 2 CALIFORNIA LABOR & EMPLOYMENT LAW REVIEW VOLUME 35, NO. 2 the nuisance [the employee’s] association with his disabled son Under federal law, the answer is would cause [the supervisor] in the future,” supporting his definitely no. But under California law, associational disability discrimina- tion claim.23 presently the answer is definitely maybe. This too was a case at its heart about an employee’s need for a reasonable accommodation, as immediately recognized by the disabled father. The employer Thus, an employer is obligated court. In the end, it triggered asso- denied employee’s request to reasonably accommodate an ciational disability discrimination and subsequently terminated employee who is associated with liability exposure regardless. 14 18 him. The court concluded a disabled person. Unsurprisingly, met the that the employee’s allegations However, in its revised majority opinion a strong dissent. were sufficient to establish a opinion, which is now published In the majority’s view, the inter- plausible associational disability law, the majority turned down pretation of FEHA should part discrimination claim, because they the temperature on this issue, but ways from the federal decisional supported a reasonable inference refused to hold back its thoughts authority when the statutory that the employer terminated the on it. “[W]e do not decide this language of ADA and FEHA is not employee based on a belief about point. We only observe that parallel, like in the associational 15 future absences. the accommodation issue is not disability context.24 The majority At its core, Kouromihelakis settled and that it appears signifi- found the ADA structurally is yet another case supporting cantly intertwined with the statutory different from FEHA because associational disability discrimina- prohibition against disability ADA does not define the term 19 tion in a factual context where an discrimination. .” Neverthe- “disability” itself as including employee needed a reasonable less, the majority noted, “[w] association with the disabled.25 accommodation, but lost his hen [Government Code section Still, the dissent refused to job instead. 12940(m)] requires employers construe FEHA as departing from to