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Employees Requesting Accommodation Are Now Protected

Posted by Eric Kingsley | Aug 04, 2015 | 0 Comments

New California Law Expands Retaliation Coverage

On July 16, 2015, Governor Brown signed into law AB 987, amending the California Fair Employment and Housing Act (FEHA). AB 987 was proposed and signed into law in response to a recent California Court of Appeal decision in Rope v. Auto-Clor System of Washington, Inc., 220 Cal. App. 4th 635 (2013). The amendment confirms what many already believed to be the law–employers and other covered entities cannot retaliate against employees or other persons who request a religious accommodation or an accommodation for a disability.

Workplace discrimination

Effective on January 1, 2016, AB 987 prohibits an employer or other covered entity from retaliating or otherwise discriminating against a person for requesting accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was granted.

Impact of the Rope Decision

Upon his hiring in 2010, Scott Rope notified his employer that he would eventually need leave from work so that he could have surgery to donate one of his kidneys to his disabled sister. Later, per his doctor's recommendation, he requested additional leave time to recover from surgery. Rope requested that he be paid during his leave under the Michelle Maykin Memorial Donation Protection Act (“DPA”), a law which was to become effective on January 1, 2011. Under the DPA, employees are entitled to 30 days of paid leave when missing work for organ donation. Although Rope repeatedly reminded his employer about his request for paid leave, his employer did not respond and instead informed him that he could take an unspecified amount of unpaid leave. Two days before DPA became effective, Rope's employer terminated him for poor performance. Rope then filed a FEHA lawsuit.

Rope alleged that his former employer violated FEHA by retaliating against him for requesting leave for his surgery to aid his disabled sister's medical condition. The trial court disagreed and ruled that Rope's request for paid leave as an accommodation did not qualify as a “protected activity” within the meaning of the law. Although FEHA prohibited an employer from discriminating against workers because the person opposed forbidden practices, it did not explicitly protect against retaliation for requesting accommodations. On appeal, the appellate court agreed with the trial court, stating: “We find no support in the regulations or case law for the proposition that a mere request – or even repeated requests – for an accommodation, without more, constitutes a protected activity sufficient to support a claim for retaliation in violation of FEHA.”

AB 987

As a result of the Rope decision, courts have dismissed cases where an employee was fired or otherwise discriminated against in retaliation for simply making a request for reasonable accommodation for a disability or religion. Employee advocates sought the passage of AB 987 to address this concern. With the successful enactment of AB 987, as of January 1, 2016, FEHA will explicitly provide the coverage that would have provided Rope an opportunity to sue his employer, and will allow other workers in similar situations to bring retaliation lawsuits. Without this clarification, an employer can simply terminate an employee who requests a reasonable accommodation, and the employee will have no legal recourse to claim retaliation.

Experienced California Employment Lawyers

If you have been terminated or disciplined after requesting a religious or disability-related accommodation, whether or not the accommodation was granted, you may have the merits for a retaliation claim. Consulting an experienced Los Angeles employment lawyer is an effective means for dealing with unfair treatment in the workplace.

To discuss a potential claim on your behalf, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.

About the Author

Eric Kingsley

In practice since 1996, attorney and firm co-founder Eric B. Kingsley has litigated complex cases and authored numerous appellate briefs in both state and federal court on behalf of the California law firm of Kingsley & Kingsley, including over 150 class actions. Mr. Kingsley concentrates his pra...

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