BILL ANALYSIS Ó
AB 987
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Date of Hearing: April 8, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 987
(Levine) - As Introduced February 26, 2015
SUBJECT: Employment discrimination, unlawful employment
practices
SUMMARY: Revises provisions of the Fair Employment and Housing
Act (FEHA) related to employee requests for accommodation.
Specifically, this bill:
1)Makes it an unlawful employment practice for an employer or
other covered entity to retaliate or otherwise discriminate
against a person for "requesting" an accommodation for
physical or mental disability or religious belief or
observance, regardless of whether the request was granted.
2)Makes related legislative findings and declarations.
EXISTING LAW:
1)Prohibits employment discrimination on account of race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity,
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gender expression, age, sexual orientation, or military or
veteran status.
2)Prohibits an employer or other covered entity to discharge,
expel, or otherwise discriminate against any person because
the person has opposed any practices forbidden under FEHA or
because the person has filed a complaint, testified, or
assisted in any proceeding under this part.
FISCAL EFFECT: Unknown
COMMENTS: This legislation is 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).
In that case, the plaintiff was hired by the employer in
September 2010. At the time of his hiring, he informed the
employer that he planned in February 2011 to donate a kidney to
his physically disabled sister. On January 1, 2011, the
Michelle Maykin Memorial Donation Protection Act went into
effect, which provides employees paid, job-protected leave for
organ and bone-marrow donation. However, two days before the
law went into effect, the plaintiff was terminated by the
employer.
The plaintiff filed suit, alleging a number of violations of
California law. While the Court held that he had pleaded
sufficient facts to support a claim for associational-based
disability discrimination, it dismissed a number of his other
claims, including retaliation under FEHA.
With respect to the FEHA retaliation claim, the plaintiff
alleged that he suffered retaliation for requesting leave for
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his sister's disability or medical condition. However, the
Court noted that the FEHA retaliation provision only makes it
unlawful:
"For any employer, labor organization, employment agency, or
person to discharge, expel, or otherwise discriminate against
any person because the person has opposed any practices
forbidden under this part or because the person has filed a
complaint, testified, or assisted in any proceeding under this
part." (Government Code Section 12940(h)0[Emphasis provided].
The Court found that plaintiff did not claim to have "opposed"
any unlawful conduct on the part of the employer and therefore
could not support a claim for retaliation. "Nevertheless, 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."
Federal case law has concluded that even though the Americans
with Disabilities Act (ADA) does not expressly prohibit
retaliation based upon requesting an accommodation, Congress
must have intended the Act to cover such conduct. These cases
have stated that in order to establish a prima facie case of
retaliation for requesting an accommodation, the employee must
allege the following: (1) he/she was engaged in protected
activity (request for accommodation); (2) an adverse employment
action was taken; and (3) there is a causal connection between
the request for accommodation and the adverse employment action.
Soileau v. Guildford of Maine, Inc., 105 F.3d 12, 16 (1st Cir.
1997); Wright v. CompUSA, Inc., 352 F.3d 472, 478 (2003). There
has not been any federal case under the ADA in which a denial of
an accommodation, by itself, has been considered an adverse
employment action for purposes of retaliation. The elements of
a prima facie case of retaliation indicate there must be a
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separate adverse employment action that occurs following the
denial of an accommodation. See Wright, 352 F.3d at 478
(employee was terminated following request for an
accommodation); and Soileau, 105 F.3d at 17 (employee was
terminated following request for an accommodation). A denial of
an accommodation, however, can be considered in the totality of
circumstances of whether an adverse employment action occurred.
See e.g., Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028,
1139, fn.11 (no requirement that an employer's retaliatory acts
constitute one swift blow, rather than a series of subtle, yet
damaging, injuries).
ARGUMENTS IN SUPPORT:
This bill is sponsored by the California Employment Lawyers
Association (CELA), who argues that it will clarify that an
employee cannot be retaliated against for requesting a
reasonable accommodation for a disability or religion. CELA
states that, 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.
Without clarification, an employer can simply terminate an
employee who requests a reasonable accommodation, and the
employee will have no legal recourse to claim retaliation.
In addition, CELA states:
"The Rope decision stands in direct conflict with longstanding
federal disability and religious discrimination laws, which do
protect an employee's right to request reasonable
accommodation. Title VII of the Civil Rights Act of 1964
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prohibits retaliation by an employer, employment agency, or
labor organization because an individual has engaged in
protected activity. Protected activity consists of (1)
opposing a practice the employee reasonably believes is made
unlawful by one of the employment discrimination statutes or
(2) filing a charge, testifying, assisting, or participating
in any manner in an investigation, proceeding, or hearing
under the statute. The EEOC explicitly has taken the position
that requesting religious accommodation is protected activity.
Similarly, the Americans with Disabilities Act (ADA) protects
an employee's right to request reasonable accommodation. The
EEOC Enforcement Manual provides that "although a person
making such a request might not literally "oppose"
discrimination or "participate" in the administrative or
judicial complaint process, s/he is protected against
retaliation for making the request." In Shellenberger v.
Summit Bancorp, Inc., 318 F.3d 183 (3d Cir. 2003), the court
stated, "It would seem anomalous . . . to think Congress
intended no retaliation protection for employees who request a
reasonable accommodation unless they also file a formal
charge. This would leave employees unprotected if an employer
granted the accommodation and shortly thereafter terminated
the employee in retaliation."
Further, the State's Pregnancy Disability Leave laws and the
California Family Rights Act under the Fair Employment and
Housing Act explicitly protect workers who exercise their
right to request a pregnancy accommodation or medical leave,
respectively. See Gov. Code § 12945(a)(4) and Gov. Code §
12945.2(l)(1) and Gov. Code § 12945.2(t)."
The sponsor and the author point to a number of recent cases in
which courts have relied on Rope in holding that a request for
accommodation is not protected activity for purposes of the
retaliation provisions of FEHA. This bill is needed to clarify
the law to ensure that workers' rights are not being violated.
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REGISTERED SUPPORT / OPPOSITION:
Support
Agudath Israel of California
American Civil Liberties Union
Association of Regional Center Agencies
California Employment Lawyers Association (Sponsor)
California Rural Legal Assistance Foundation
Church State Council
Consumer Attorneys of California
Disability Rights California
Disability Rights Education and Defense Fund
Glendale City Employees Association
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Legal Aid Society-Employment Law Center
National Association of Social Workers, CA Chapter
Organization of SMUD Employees
San Bernardino Public Employees Association
San Diego County Court Employees Association
San Luis Obispo County Employees Association
Opposition
None on file.
Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091
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