BILL ANALYSIS Ó AB 987 Page 1 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, AB 987 Page 2 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 AB 987 Page 3 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 AB 987 Page 4 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 AB 987 Page 5 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. AB 987 Page 6 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 AB 987 Page 7 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 AB 987 Page 8