Recently, the California Fair Employment and Housing Act (FEHA) amendment was signed into law. Governor Brown signed AB 987, making it illegal for employers and others to retaliate against employees who request accommodations for religious or disability reasons. The amended law makes requesting such an accommodation a protected activity whether the accommodation is granted or not.
Although FEHA technically already prohibited retaliation against those requesting an accommodation, the amendment was drafted as a result of a lawsuit brought by an employee who was terminated for requesting leave to have surgery to donate a kidney to his disabled sister. Scott Rope lost his lawsuit against his former employer because the trial court ruled that his request for paid leave as an accommodation didn’t qualify as a “protected activity” under the law. Protected activity was defined as opposing some unlawful practice, which didn’t define requesting accommodation. FEHA did not explicitly protect against retaliation for requesting accommodations. Employee advocates were concerned that the consequences of Rope’s lost court battle would be disastrous for those seeking accommodations, and pushed to enact AB 987 and expand coverage to provide opportunities to sue for retaliation. Requesting accommodation is now a protected activity.
What Does This Mean For Employers?
The passage of AB 987 more clearly defines retaliation and its legal consequences. It is illegal for employers to fire employees who exercise their rights. To avoid breaking the law and getting sued, employers must train human resources staff, supervisors, and managers to avoid conduct that can be construed as retaliation. When terminating or disciplining an employee who has requested an accommodation for religious or disability-related reasons, employers and their representatives must exercise extreme caution. Employers take a risk when disciplining, terminating, or taking other adverse job actions against employees who have requested accommodations. They risk ADA and religious discrimination retaliation claims.
What Employers Should Do
Employers can successfully navigate legal risks of retaliation claims with good employment processes, including training supervisors and managers, paying attention to timing, and checking for protected activity like requests for reasonable accommodations before making disciplinary or termination decisions. It’s important to train supervisors, managers, and human resources staff that requests for accommodations can be protected activity whether they are granted or not. These personnel are an organization’s front-line supervisory and administrative staff, and have to understand that as protected activity, requests for reasonable accommodations represent an area of liability for employers. They should be trained to notify the organization’s human resources management when discipline, termination, and other adverse actions are being considered. Paying attention to timing of employee requests for accommodations and proposed discipline or termination can mean the difference between a clean resolution and a lawsuit from a retaliation claim. Supervisors and managers should always check to ensure an employee hasn’t recently requested accommodation when disciplinary issues arise to avoid the appearance of disciplinary action being seen as retaliatory.