Employees Can Claim Disability Discrimination Even If They Do Not Have A Disability

By Deborah H. Petito, Esq.

One of the most difficult areas for employers is how to handle employee requests for reasonable accommodations based on disability. Employers are required to accommodate an employee who is disabled.  There is a recent California case which requires employers to accommodate employees who associate with disabled individuals even if the employee is not disabled.

Prior to this recent California case, employers could focus on the employee’s disability and whether or not the employee could be accommodated. Now employers must be aware that an employee can also request a reasonable accommodation to care for a third party who is disabled with whom the employee is associated.  It is unclear whether that disabled person needs to be a family member as required by the family and medical leave laws.  The first California appellate case on this issue, Luis Castro-Ramirez v. Dependable Highway Express, was decided in 2016.  The employee administered dialysis to his son.  The employee’s original schedule allowed him to be home at night to do so.  However, a new supervisor changed his schedule and terminated him when he refused to work the new schedule.  The Court of Appeal held that the employee could bring claims for disability discrimination and retaliation even though he was not disabled.  The Court of Appeal specifically held that “FEHA creates an associational disability discrimination claim” because “’physical disability’ . . . include[s] ‘. . . that the person is associated with a person who has, or is perceived to have, any of those characteristics.’”

There are no hard and fast rules about reasonable accommodations or time limits on the length of a disability leaves based upon an employee’s serious health condition or the need of an employee to care for a third party with whom the employee is associated. The length of a leave depends on a number of circumstances, including the level of the employee’s job (how hard it is to have another employee perform their job duties), the size of the employer and whether or not the employer can show that there is an undue hardship in allowing an extended leave.  Other reasonable accommodations also depend on the specific request and its effect on the employer.  Employers who do not understand the law either deny the reasonable accommodation,  terminate the leave too early and open themselves up to a disability discrimination lawsuit or let employees have unlimited leaves of absence which causes operational issues, particularly when the employee wants to return to work.

The Castro-Ramirez case is a classic “bad facts make bad law” case. However, the effect is that employers are faced with whether to grant a leave as an accommodation to those employees who request leaves not only for their own disability but also to take care of a disabled third party, who is not necessarily related to the employee, who has or is perceived to be disabled.  This is a significant broadening of the protections under the Fair Employment and Housing Act.  It remains to be seen how broadly associational disability discrimination will be integrated by future court decisions, but for now employers must entertain a leave of absence requested by an employee to care for another disabled person.

To avoid claims of disability discrimination, employers should:

  1. Train supervisors and managers regarding what constitutes a disability and that the disabled person does not have to be the employee.  Supervisors are often the first person to hear that an employee needs or would like an accommodation.
  2. Make sure they understand how to engage in the interactive process and how to evaluate accommodations to determine if they are “reasonable.”

The best advice in this area for employers is to consult their employment counsel before taking action because the employment laws overlap and have different requirements. Some employers do not want to pay the fees for a legal consultation, but a small investment now may avoid a huge legal headache.

Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about disability discrimination, including associational disability discrimination, the interactive process or reasonable accommodations, please feel free to contact Deborah Petito by email at dpetito@clartktrev.com or Leonard Brazil at lbrazil@clarktrev.com or telephonically by calling the author at (213) 341-1359.

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