A Rose Is a Rose Is Not Retaliation: Why Requesting an Accommodation Should Not Be Considered “protected Activity”
| Citation | Vol. 28 No. 2 |
| Publication year | 2014 |
| Author | By Matthew R. Jedreski |
By Matthew R. Jedreski
Matt Jedreski, a 2008 graduate of the University of Michigan Law School, is an associate at Paul, Plevin, Sullivan & Connaughton LLP in San Diego, where his practice focuses on counseling and litigating on behalf of companies in employment and commercial disputes.
Section 12940(h) of California's Fair Employment and Housing Act (FEHA) prohibits employers from retaliating against an employee who "has opposed any practices[,] . . . filed a complaint, testified, or assisted in any proceeding" under FEHA.1 An employee's simple request for a reasonable accommodation is neither an opposition, nor complaint, nor participation in a proceeding under FEHA. A request for accommodation thus should not serve as "protected activity" supporting a retaliation claim under Cal. Gov't Code § 12940(h)—yet courts routinely find that it does.
Of course, if an employer fails to interact with the employee, refuses to implement a reasonable accommodation request, or takes adverse action against an employee for requesting an accommodation, the employee might have any number of viable claims: for failure to accommodate, failure to engage in the interactive process, disability discrimination, wrongful termination, etc. But a claim for FEHA retaliation should not lie if the claim relies solely on an accommodation request to satisfy the "protected activity" requirement.
This article summarizes California law regarding Cal. Gov't Code § 12940(h) and argues why a request for accommodation is not "protected activity" and therefore should not give rise to a claim for retaliation under FEHA.
Over the last ten years, more than a dozen California and federal court opinions have held that a plaintiff's request for an accommodation is a "protected activity" that can serve as an element of a retaliation claim under FEHA. None of those opinions include any analysis as to why requesting an accommodation could be, by itself, a protected activity, but instead appear to accept that idea as a given. For example:
- Plaintiff "produced evidence that she asked for an accommodation for her disability in January 2004, which was protected activity, and that she was fired in July 2004";2
- Plaintiff's "retaliation claims, both for requesting medical leave and reasonable accommodations, are dependent on a showing that there was a causal nexus between the protected activity and the adverse employment action";3
- "While [plaintiff] demonstrated he engaged in a protected activity by requesting accommodations and complaining about perceived discrimination, he failed to identify an adverse employment action that occurred after he engaged in protected activity";4
- Plaintiff "was engaged in a protected activity when he requested that the IRS make reasonable accommodations for his alleged disability."5
Many federal courts, interpreting nearly identical language in the anti-retaliation provision of the Americans with Disabilities Act (ADA),6 have made the same assumption, again without in-depth analysis.7
Why are courts classifying requests for accommodation as "protected activities" when the anti-retaliation provision of the FEHA (and ADA) clearly requires some form of actual opposition activity? A few factors may contribute.
First, a FEHA retaliation claim must include the following elements: (1) the employee engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link existed between the protected activity and the employer's action.8 Courts sometimes explain that the shorthand "protected activity" in the anti-retaliation context specifically refers to conduct protected under Cal. Gov't Code § 12940(h)—in other words, some form of opposition to, or complaint about, illegal practices under FEHA.9 But many courts do not bother with this crucial nuance.10
This otherwise helpful formula may have a collateral muddying effect, as FEHA does protect an employee's right to reasonable accommodations. Employers are obligated to engage in a timely, good-faith interactive process to determine and implement reasonable accommodations.11 If an employer discharges12 an employee because that employee requested a reasonable accommodation, the employer may be subject to disability discrimination liability.13 Thus, in a general sense, requesting an accommodation is indeed an activity that is protected under the FEHA.
Second, if an employer discharges an employee because the employee requested an accommodation, that is conduct that sure looks and feels like "retaliation" under the plain meaning of the word.14 That logic may have led the EEOC to assert (errantly, in my view) that a "request for reasonable accommodation of a disability constitutes protected activity under" the ADA's anti-retaliation provision, even though "a person making such a request might not literally 'oppose' discrimination or 'participate' in the administrative or judicial complaint process."15 The EEOC explains tautologically that this is so because employees generally are "protected against retaliation for making the request."16
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Finally, a plaintiff-employee who has been discharged because she requested a reasonable accommodation often brings a host of FEHA claims: discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, failure to prevent discrimination, etc. It is also often the case that an employee both requested an accommodation and lodged some sort of formal or informal complaint with the employer relating to the employee's FEHA rights. Under those circumstances, litigants on both sides are less likely to focus on the semantics of the "protected activity" element when doing so will have little (if any) concrete effect on the defendant's ultimate liability. Because it often makes no practical difference, it is possible that fewer parties and courts have an incentive to scrutinize the "protected activity" element to begin with.17
Fortunately for California employers, there is law supporting the proposition...
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