Mcle Self-study: Associational Reasonable Accommodations? Definitely Maybe!
| Publication year | 2021 |
| Author | By Jacob Nalbandyan and Kelly (Ka In) Chan |
By Jacob Nalbandyan and Kelly (Ka In) Chan
Co-founder of Levin & Nalbandyan, LLP, partner Jacob Nalbandyan heads the civil litigation department focused on labor and employment law. He argued for plaintiff-appellant in Castro-Ramirez v. Dependable Highway Express, Inc., an associational disability discrimination case. Kelly (Ka In) Chan is a member of the employment litigation department at Levin & Nalbandyan, LLP, where she practices labor & employment law. Passionate about justice, she works hard to make sure her clients get rightfully compensated, and volunteers in multiple legal clinics.
As associational disability discrimination laws take shape in California, we must familiarize ourselves with their interplay with related reasonable accommodation and interactive process laws. This is particularly pressing in light of the current lack of guidance from California courts. To examine the state of affairs pertaining to the latter two in the context of associational disability, this article will look at the relevant statutes and the cases related to associational disability discrimination. By dissecting relevant cases and the underlying statutes, the authors conclude that because associational disability discrimination protections exist, so must related protections against the failure to reasonably accommodate and participate in an interactive process.
In California, the Fair Employment and Housing Act (FEHA)1 affords wide protections to employees with disabilities. It imposes strict affirmative duties on the employer in this regard, all of which are aimed at maintaining a healthy continuity of employment both for the interests of employees and employers. In this regard, the Legislature has declared these protections a matter of public policy,2 which must, therefore, be at the heart of the discussions surrounding related legal issues.
A more complex issue arises in this legal space, however, when it comes to whether the same protections apply to an employee who is not disabled but is, instead, merely associated with a disabled person but needs a reasonable accommodation, i.e., flex schedule or intermittent leave.
Under federal law, the answer is definitely no.3 But under California law, presently the answer is definitely maybe.
At the outset, FEHA's antidiscrimination provision makes it unlawful for an employer to terminate or discriminate against an employee because of disability.4 It also makes it unlawful for an employer to "fail to make reasonable accommodation for the known physical or mental disability" of an employee or to refuse to engage in an interactive process in search of reasonable accommodations.5 So far, from its plain language, FEHA seems to protect only those who are themselves disabled, right?
Not so. Enter Government Code section 12926(o), which states, in relevant part, that "'disability' . . . includes . . . that the person is associated with a person who has, or is perceived to have" a disability.6
Accordingly, by the virtue of plug-and-play analysis, while FEHA protects an employee's actual disability, it also protects that employee's association with another who has a disability even though the employee does not. The California Court of Appeal has twice said so in the context of associational disability discriminatory firings, but has remained silent (somewhat) on the issue of whether an employer must also provide reasonable accommodations in this context by engaging an interactive process.7
This silence has put both California employers and employees in a conundrum, illustrated by the following hypothetical:
Johnny has worked for XYZ, Inc. for three months and just learned that his wife has become wheelchair-bound, necessitating that he occasionally arrive late to or leave early from work. He approaches the HR boss, Jane, who thinks to herself: "I know I can't fire him because that might constitute associational disability discrimination, but there's nothing on the books requiring me to accommodate him either."
So what should Jane do? Let's explore what is most prudent, keeping in mind the State's public policy.
Unfortunately, an examination of the legislative history of the relevant statutes we have examined so far reveals nothing pertaining to the intent of the Legislature. The FEHA is silent on whether the interactive process and reasonable accommodation apply equally to associational disability.8
Nonetheless, there are several cases in the associational disability discrimination context that indirectly shed light on the issue at hand. Acutely though, at the core of each of those cases, and factually, is an employee's need for a reasonable accommodation because of that employee's association with a disabled person.
Take note of how each played out.
Rope v....
To continue reading
Request your trial