Articles Discussing Disability Discrimination Claims Under California Law.

On April 4, 2016, the California Supreme Court took a stand by issuing a long-awaited opinion in Kirby v. CVS Pharmacy, Inc. The decision clarifies certain ambiguities in an employer’s obligation to provide suitable seating to employees. At issue was a provision in California’s Wage Orders that requires employers to provide all employees “with suitable seats when the nature of the work reasonably permits the use of seats.” The Court held that “nature of the work” refers to the task performed at a given location where the employee is claiming a right to a suitable seat, instead of a holistic approach. The Court also adopted a “totality of the circumstances” test to assess whether a work location “reasonably permits” suitable seating.

Executive Summary: The California Supreme Court’s recent decision in Kilby v. CVS Pharmacy/Henderson v. JPMorgan Chase has clarified the state’s standards concerning when employers must provide suitable seating to their employees. While the holding will permit employees to sit on the job under certain circumstances based on the nature of work actually performed (rather than an abstract, such as a job description), the state high court validated a reasonable interpretation of the requirement that permits employers to use their business judgment (including customer service considerations) and the physical layout of workspaces when determining whether seating is required.

The Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA) both require employers to make reasonable accommodations for qualified individuals with disabilities, provided that the accommodations do not impose an “undue hardship” on the employer.

Affirming summary judgment in favor of an employer on an employee’s disability discrimination claims under the California Fair Employment and Housing Act (“FEHA”), the California Court of Appeal has ruled that the employer was not required to eliminate essential functions of a position as a reasonable accommodation. Nealy v. City of Santa Monica, No. B246634 (Cal. Ct. App. Feb. 13, 2015).

A university properly terminated a professor for failing to undergo a fitness-for-duty examination after he had engaged in instances of threatening behavior, the California Court of Appeal has ruled, affirming a judgment in favor of the University of San Francisco on a professor’s alleged disability discrimination claims under the Fair Employment and Housing Act (“FEHA”). Kao v. University of San Francisco, No. A135750 (Cal. Ct. App. Sept. 2, 2014). Significantly, the Court ruled the University was not required to engage in an “interactive process” before requesting the examination because the professor never sought any accommodation for any disability.

An employee who repeatedly falsified his employment status to obtain employment, as his employer learned only after he was laid off a second time and filed suit, was not barred by the doctrines of “after-acquired evidence” or “unclean hands” from asserting claims for alleged disability discrimination against his employer under California law, the California Supreme Court has ruled. Salas v. Sierra Chemical Co., No. S196568 (Cal. June 26, 2014).

An employee who told his employer that he would need time off because he intended to donate a kidney to his sister and was fired two days before California’s new Donor Protection Act became effective could pursue a claim for associational disability discrimination under the California Fair Employment and Housing Act, the California Court of Appeal has ruled. Rope v. Auto-Chlor System of Washington, Inc., No. B242003 (Cal. Ct. App. Oct. 16, 2013). However, the employee could not assert a statutory claim under the Michelle Maykin Donor Protection Act, because the Act does not apply retroactively.

Key Points: Recent California case law and new regulations stress the importance of the employer’s duty to engage in the interactive process with disabled workers who require accommodation. Now more than ever, it is important for employers to review their current policies and procedures to ensure compliance with California’s broader disability protections.

An employee who was discharged after seeking an extension of his leave of absence was a qualified individual entitled to proceed with his disability discrimination claim under the California Fair Employment and Housing Act, even though he was totally disabled while on leave, where leave may be a reasonable accommodation of his temporary disability, the California Court of Appeal has ruled. Prock v. Tamura Corp. of Am., No. E054185 (Cal. Ct. App. Jan. 25, 2013) (unpublished). The Court found the employee’s receipt of disability benefits did not bar his claims where he also asserted he could have returned to work if given additional leave. It also found the employer failed to engage in the interactive process when the employee requested an extension of his leave. The Court reversed summary judgment in favor of the employer and returned to case to the trial court.

California employers should be prepared to welcome support dogs and other animals into the workplace as a reasonable accommodation for disabled workers requiring support under new disability regulations issued by the California Fair Employment and Housing Commission. The new regulations significantly expand protections for disabled workers and outline new requirements regarding reasonable accommodations, the interactive process, and proof of discrimination. The regulations took effect on December 30, 2012. Key provisions are set forth below.

Regulations proposed by California’s Fair Employment and Housing Commission governing disability discrimination have been finalized after public comment and are now in effect. According to the Statement of Purpose, the Commission intends that the definition of “disability” be construed as broadly as allowed by the Fair Employment and Housing Act (FEHA), California’s principal anti-discrimination law. The Commission urges that the primary focus in cases brought for alleged violation of the FEHA should be on whether employers have provided reasonable accommodations, whether employers and employees have met their obligations to engage in the “interactive process,” and whether discrimination has occurred. The Commission opines that whether the employee meets the definition of disability “should not require extensive analysis.” It is true that, in many cases, an employee’s status as a disabled person will be obvious. In other cases, unfortunately, the convoluted definitions of “disability” adopted by the Commission in its efforts to define that term to the outer limits of the law will require just the sort of extensive analysis the Commission wishes to avoid – unless employers are to abandon the question of a disability’s existence entirely and simply assume that anyone requesting an accommodation is disabled under the law.

California Governor Jerry Brown has signed into law a bi-partisan measure that seeks to curb rampant, frivolous Americans with Disabilities Act access lawsuits in the state and expand access to businesses for those with disabilities. This is good news for California businesses. The state reportedly has 12 percent of the country’s disabled population, but 40 percent of the nation’s ADA lawsuits.

In a much anticipated decision, a federal judge in California’s Southern District ruled last week that CVS Pharmacy was not required to provide its cashiers with seats to use while operating cash registers. The plaintiff is a former customer service representative (“clerk/cashier”) at CVS who filed a lawsuit on behalf of all California customer service representatives alleging that CVS violated Wage Order 7–2001, section 14(A) when it failed to provide its clerks/cashiers with suitable seats during the performance of their job duties. Section 14 of Wage Order 7–2001 provides: