BILL ANALYSIS                                                                                                                                                                                                    Ó



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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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