Governor Brown has just signed AB 987, Employment discrimination: unlawful employment practices (2015-2016), authored by Assemblymember Levine, which amends the Fair Employment and Housing Act (“FEHA”) under the religious accommodation and disability accommodation provisions (California Government Code § 12940(l) and (m), respectively) to clarify that an employer cannot retaliate or otherwise discriminate against a person for requesting a reasonable accommodation.
This bill abrogates a ridiculous part of the Second District Court of Appeal decision, Rope v. Auto-Chlor System of Washington, Inc., (2013) 220 Cal. App. 4th 635, which held that a request for reasonable accommodation is not protected activity under the FEHA. With the exception of its holding on this issue, Rope, remains good law. You may recall, Mr. Rope sued his employer after he was terminated from trying to donate his kidney to his sister – something near and dear to my heart – [don’t worry Katie – mine is pickled now] alleging a violation of the Michelle Maykin Memorial Donation Protection Act (“DPA”), retaliation, wrongful termination in violation of public policy, and violations of the FEHA.
In a nasty set of facts, Mr. Rope, who had planned to donate a kidney to his sister, was terminated two days before the DPA became effective. The Superior Court, Los Angeles County, No. BC467045, Judge Holly E. Kendig, sustained employer’s demurrer (basically a dismissal) to initial complaint with leave to amend in part, and, following amendment of complaint, sustained employer’s demurrer without leave to amend. Mr. Rope appealed and the Court of appeal did not really throw him a line with a wishy washy decision, the Court of Appeal, Johnson, J., held that:
1 DPA does not apply retroactively;
2 complaints to employer did not trigger protection of whistleblower statute applicable to complaints to a governmental agency;
3 court would decline to extend whistleblower protection under theory of anticipatory retaliation;
4 employee’s requests for paid leave did not constitute protected activity sufficient to support a claim for retaliation under the FEHA;
5 employee exhausted his administrative remedies prior to adding FEHA claim for discrimination on the basis of actual or perceived disability;
6 employee stated a prima facie “expense” associational discrimination claim under the FEHA; and
7 employee stated a prima facie claim for wrongful discharge in violation of public policy.
The Court of appeal basically affirmed in part and reversed in part with directions. The law to this point had clearly protected disability and reasonable accommodation requests. (See Pregnancy Disability Leave Law (Government Code § 12945) and the California Family Rights Act (Government Code § 12945.2 and 19702.3). The California legislature did not like this act of judicial activism and specifically targeted Rope’s holding in the legislative history, which states at relevant part:
“(c) The law of this state contains similar protections for a person making a request for reasonable accommodation under the Pregnancy Disability Leave Law (Section 12945 of the Government Code) and the California Family Rights Act (Sections 12945.2 and 19702.3 of the Government Code). It is the intent of the Legislature for the protections afforded a person making a request for accommodation on the basis of religion or disability to be consistent with the provisions of the Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code).
(d) Notwithstanding any interpretation of this issue in Rope v. Auto-Chlor Sys. of Washington, Inc., (2013) 220 Cal. App. 4th 635, the Legislature intends (1) to make clear that a request for reasonable accommodation on the basis of religion or disability is a protected activity, and (2) by enacting paragraph (2) of subdivision (m) and paragraph (4) of subdivision (l) of Section 12940, to provide protection against retaliation when an individual makes a request for reasonable accommodation under these sections, regardless of whether the request was granted. With the exception of its holding on this issue, Rope v. Auto-Chlor Sys. of Washington, Inc., (2013) 220 Cal. App. 4th 635 remains good law.”
This bill should apply to all existing claims and lawsuits and any trial court considering the issue should re-read the Rope decision. As the California Supreme Court has explained, “A statute that merely clarifies, rather than changes, existing law” may be “applied to transactions predating its enactment” See W. Sec. Bank v. Superior Court, (1997) 15 Cal.4th 232, at 250.
The full text of the statute can be found here. If anyone has questions about their existing employment law claims or requests for reasonable accommodation or retaliation, please contact Richard E. Quintilone II Esq. at [email protected] of Quintilone & Associates for more information.
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