BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 987 (Levine)
Version: May 27, 2015
Hearing Date: June 9, 2015
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Employment discrimination: unlawful employment practices
DESCRIPTION
This bill would make it an unlawful employment practice under
the Fair Employment and Housing Act for an employer or other
covered entity to retaliate or otherwise discriminate against a
person who requests an accommodation for the person's religious
belief or observance or for the person's known physical or
mental disability, regardless of whether the request was
granted.
BACKGROUND
Various statutes, such as the Fair Employment and Housing Act
(FEHA) and the Unruh Civil Rights Act, prohibit discrimination
in employment, housing, public accommodation and services
provided by business establishments on the basis of specified
personal characteristics such as sex, race, color, national
origin, religion, and disability. Over time, these statutes
have been amended to include other characteristics such as
medical conditions, marital status, and sexual orientation.
Also over time, other statutes were amended to reflect the
state's public policy against discrimination in all forms.
Under FEHA, an employee is protected from retaliation by the
employer if the employee has opposed any of the employer's
discriminatory practices or because the employee has filed a
complaint, testified, or assisted in a FEHA proceeding against
the employer. Although courts construe protected activity
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broadly, to include complaints made to employers, courts require
that the employee communicate to the employer sufficiently to
convey the employee's reasonable concerns that the employer is
acting in an unlawful discriminatory manner. (See Pratt v.
Delta Air Lines Inc. et al. (2015) U.S. Dist. LEXIS 60101, p.
40, citing Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028,
1047.) However, courts have held that a mere request for
accommodation is not an activity protected from employer
retaliation. (See Kelley v. Corrections Corp. of America (2010)
750 F.Supp.2d 1132, 1144; Rope v. Auto-Chlor System of
Washington, Inc. (2013) 220 Cal.App.4th 635, 652.)
To address that issue, this bill seeks to provide employees with
protection from retaliation for requesting accommodation related
to the person's religious belief or observance or physical or
medical disability.
CHANGES TO EXISTING LAW
Existing federal law , Title VII of the Civil Rights Act,
prohibits discrimination and harassment of employees. (42
U.S.C. Sec. 2000e et seq.)
Existing law , the Fair Employment and Housing Act (FEHA),
prohibits, as a matter of public policy, discrimination and
harassment in employment on the basis of race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital
status, sex, gender, gender identity, gender expression, age,
sexual orientation, or military and veteran status. (Gov. Code
Sec. 12940 et seq.)
Existing law prohibits, unless based upon a bona fide
occupational qualification, or, except where based upon
applicable security regulations, as specified, an employer to
refuse to hire or employ a person or to refuse to select a
person for a training program leading to employment or to bar or
to discharge a person from employment or from a training program
leading to employment, or to discriminate against a person in
compensation or in terms, conditions, or privileges of
employment because of a conflict between the person's religious
belief or observance and any employment requirement. (Gov. Code
Sec. 12940(l)(1).) Existing law defines religious belief or
observance to include observance of a Sabbath or other religious
holy day or days, reasonable time necessary for travel prior and
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subsequent to a religious observance, and religious dress
practice and religious grooming practice. (Id.)
Existing law provides that an accommodation of an individual's
religious dress practice or religious grooming practice is not
reasonable if the accommodation requires segregation of the
individual from other employees or the public, and an
accommodation is not required if it would result in a violation
of FEHA or any other law prohibiting discrimination or
protective civil rights. (Gov. Code Sec. 12940(l)(2)-(3).)
Existing law prohibits an employer or other entity to fail to
make reasonable accommodation for the known physical or mental
disability of an applicant or employee; however, an employer is
not required to provide accommodation that is demonstrated by
the employer or other covered entity to produce undue hardship,
as defined. (Gov. Code Sec. 12940(m).)
This bill would prohibit an employer or other entity from
retaliating or otherwise discriminating against a person for
requesting accommodation for a person's religious belief or
observance or for a person's known physical or mental
disability, regardless of whether the request was granted.
This bill would make various related legislative findings and
declarations.
COMMENT
1. Stated need for the bill
The author writes:
Federal and state laws make it illegal to discriminate against
a job applicant or an employee because of the person's race,
color, religion, sex, national origin, age, disability
(including pregnancy), or genetic information. Existing law
also requires an employer to provide reasonable accommodations
because of a person's disability and[/]or religious beliefs.
Existing law prohibits discrimination against any person
because the person has opposed any practices forbidden under
the Fair Employment and Housing Act (FEHA) or because the
person has filed a complaint.
Federal law under the Americans with Disabilities Act (ADA)
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protects employees' rights to request reasonable
accommodations. A person making a request without "opposing"
discrimination or "participating" in the administrative or
judicial complaint process is protected against retaliation
for making the request.
In October of 2013, the appellate court in Rope v. Auto-Chlor
held that an employee request for reasonable accommodation is
not protected from employer retaliation. The court held 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) ? [emphasis added][.)]
Because of this decision, courts are now dismissing cases
where an employee was fired or discriminated against for
making a request for reasonable accommodation. The court's
interpretation is not in line with existing law.
This bill amends the FEHA under the religious and disability
protections to clarify that an employer is prohibited from
retaliating or discriminating against an employee for
requesting a reasonable accommodation, regardless of whether
the accommodation was granted. This protects employees who
request an accommodation and are granted the request, but are
subsequently retaliated against because of that request.
2. Providing retaliation protection for accommodation requests
The Fair Employment and Housing Act (FEHA) prohibits
discrimination against an employee or employment applicant on
the basis of, among other things, religious creed and physical
or mental disability. (Gov. Code Sec. 12940(a).) FEHA also
requires an employer to provide reasonable religious and
disability accommodations to an employee. (Gov. Code Sec.
12940(l), (m).) FEHA provides retaliation protection for an
employee who opposes any discriminatory practices of the
employer or who files a complaint, testifies, or assists in a
FEHA action. (Gov. Code Sec. 12940(h).) This bill would
further provide retaliation protection for an employee who
requests a religious or physical or mental disability
accommodation.
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In order to establish a FEHA complaint for retaliation, courts
have held that the plaintiff must show that: (1) he or she
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. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028,
1042.) This test is also used for retaliation complaints made
under the federal Americans with Disabilities Act (ADA), and
courts have held that a request for an accommodation is a
protected activity. In Shellenberger v. Summit Bancorp, Inc.
(2003) 318 F.3d 183, 191, the court stated "[t]he right to
request an accommodation in good faith is no less a guarantee
under the ADA than the right to file a complaint with the EEOC,
and we have already explained that the ADA protects one who
engages in the latter activity without regard to whether the
complainant is 'disabled.' As the court noted in Soileau v.
Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997), '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.'"
However, under FEHA, case law has held that, in order for the
employee to successfully prove retaliation by the employer, the
employee has to show more than just his or her request for an
accommodation. In Kelley v. Corrections Corporation of America
(2010) 750 F.Supp.2d 1132, 1143-1144, the court, quoting
Yanowitz, held that "'[t]he statutory language of section
12940(h) indicates that protected conduct can take many forms .
. . .' While the range of protected activities is wide for
purposes of Subdivision (h), there is no case the court can find
to support the proposition that a mere request for accommodation
is a protected activity. In every case the court has reviewed,
'protected activity' for purposes of Subdivision (h) involves
some level of opposition to the employer's actions based on the
employee's reasonable belief that some act or practice of the
employer is unlawful. Further, there must be some evidence that
the employer knew that the employee was engaged in activities in
opposition to the employer at the time of the claimed
retaliatory act." The Kelley court further held that the
plaintiff employee's reliance upon the proposition that
requesting an accommodation is a protected activity was an
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interpretation of FEHA that "would significantly blur and
perhaps obliterate the distinction between an action for failure
to accommodate or engage in the interactive process and
retaliation." (Id. at p. 1144.) This holding requiring a
plaintiff employee to show more than a request for an
accommodation to qualify for retaliation protection under FEHA
has been upheld in subsequent cases.
In Rope v. Auto-Chlor System of Washington, Inc. (2013) 220
Cal.App.4th 635, 653, the plaintiff employee made several
requests to his employer for a paid leave accommodation to
recuperate from surgery to donate a kidney to his disabled
sister. The court held that the employee's requests for an
accommodation were insufficient to prove retaliation by the
employer who terminated the employee after the requests for
leave. The Rope holding was subsequently used in Pratt v. Delta
Air Lines Inc., et al. (2015) U.S. Dist. LEXIS 60101, pp. 39-40
to examine whether, in that case, an employee's absences were
accommodations that were protected from retaliation under FEHA.
The Pratt court held that the absences did not constitute
protected activity because, "[a]s explained in Rope, the case
law and FEHA's implementing regulations make clear that to be
considered protected under section 12940(h), the employee's
activity must 'demonstrate some degree of opposition [] or
protest.' There is nothing in the record to suggest that
plaintiff's absences were a form of opposition or protest."
Disability Rights California, in support, argues that the Rope
decision "conflicts with longstanding federal disability and
religious accommodation laws, which protect an employee's right
to request reasonable accommodation. Without clarification,
employees have no legal recourse if they are retaliated against
for exercising their right to request a reasonable
accommodation." This bill seeks to clarify that FEHA provides
retaliation protection for requesting a mental or physical
disability or religious accommodation. This clarification would
bring FEHA protections in line with the retaliation protections
provided under the ADA and the Shellenberger holding. Further,
existing law requires employers to provide mental and physical
disability and religious accommodations; without retaliation
protection for requesting an accommodation, FEHA would fail to
fully protect the individuals it was enacted to protect.
Arguably, providing clear retaliation protection for
accommodation requests furthers the purpose of FEHA.
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Support : Agudath Israel of California; American Civil Liberties
Union; Association of Regional Center Agencies; California Rural
Legal Assistance Foundation; California Teachers Association;
Church State Council; Consumer Attorneys of California;
Disability Rights California; Disability Rights Education and
Defense Fund; Glendale City Employees Association; Legal Aid
Society - Employment Law Center; National Association of Social
Workers, California Chapter; Organization of SMUD Employees; San
Bernardino Public Employees Association; San Diego County Court
Employees Association; San Luis Obispo County Employees
Association; Service Employees International Union; The Arc and
United Cerebral Palsy California Collaboration
Opposition : None Known
HISTORY
Source : California Employment Lawyers Association
Related Pending Legislation : AB 1383 (Jones, 2015) would
establish the
"Voluntary Veterans' Preference Employment Policy Act," and,
among other things, would provide, under the Fair Employment and
Housing Act (FEHA), that an employer may use veteran status as a
factor in hiring decisions if the employer maintains a veterans'
preference employment policy, as specified. AB 1383 is
currently pending referral in the Senate Rules Committee.
Prior Legislation :
AB 1964 (Yamada, Chapter 287, Statutes of 2012) expanded the
definition of "religious creed" in FEHA to include religious
dress or grooming practices, as defined.
AB 1286 (Vasconcellos, Chapter 912, Statutes of 1992) changed
the term "physical handicap" to "physical disability" as a
protected class under FEHA.
AB 1077 (Bronzan, et al., Chapter 913, Statutes of 1992),
enacted with AB 1286, substituted "physical disability, mental
disability" for "physical handicap, medical condition".
AB 1180 (Hayden, Chapter 1151, Statutes of 1985) made it an
unlawful employment practice for an employer to discriminate
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against an applicant or employee because of his or her religious
observance unless the employer demonstrates that it has explored
all available means of accommodating the religious observance
without causing undue hardship on the conduct of business.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Labor and Employment Committee (Ayes 6, Noes 0)
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