All in the Family: California Court Holds Employers Have to Accommodate Disability of Employee's Family Member
April 12, 2016
A California Court of Appeal for the first time has decided that an employer has a duty to reasonably accommodate an applicant or employee who is associated with a disabled person who needs the employee’s assistance.1 This holding in Luis Castro-Ramirez v. Dependable Highway Express is unprecedented and likely to be appealed to the California Supreme Court. Until there is a definite ruling on this issue from the California’s highest court, employers should consider engaging in an interactive process analysis even when confronted with a situation where somebody is asking for a reasonable accommodation arising out of an “associated party’s” disability.
Luis Castro-Ramirez worked as a driver for Dependable Highway Express (DHE) from December 2009 until April 23, 2013. Before he accepted DHE’s job offer, Castro-Ramirez advised the company’s recruiter and his supervisors that he needed to be home early enough to operate his son’s dialysis machine. The supervisors made a point of scheduling the driver's start time in the morning, typically 9:00 a.m. or 10:00 a.m. so he could be off the clock in sufficient time to get home and administer his son’s treatment, although on occasion he had to work late.
In March 2013, DHE promoted the driver's supervisor and a new immediate supervisor nicknamed “Junior” took over. Junior, according to the opinion, changed Castro-Ramirez’s schedule, making his start time later and later so he could not get home in time to administer his son’s treatments. The driver complained to his former supervisor who in turn asked Junior to “work with” the employee.
Junior denied Castro-Ramirez’s continued requests for earlier routes, even though earlier routes were available, and a customer with an earlier route had specifically requested Castro-Ramirez. One day Junior assigned the driver a route that would have prevented him from returning home in time to administer his son’s dialysis treatment. Castro-Ramirez requested an earlier route, or asked for the day off. Junior told the driver if he did not run the route he would be fired. Castro-Ramirez refused that assignment, and Junior told him he was terminated. Thereafter, Castro-Ramirez attempted to report for work three days in a row, but Junior would not assign him any routes. On the third day, another manager told him that because he had not worked in three days, his job was terminated. The company then processed the termination as a voluntary resignation.
Castro-Ramirez sued, alleging associational disability in violation of the Fair Employment and Housing Act (FEHA), claiming the company “was substantially motivated, in part, to terminate Plaintiff because of his association with his disabled family members.” He also alleged the company retaliated against for asserting his rights under the FEHA. His complaint further alleged several other causes of action, including failure to take reasonable steps to prevent discrimination and wrongful termination in violation of public policy.
The company filed a motion for summary judgment that the trial court granted, reasoning in part that Castro-Ramirez provided insufficient evidence to show the company's decision to terminate him was motivated by his association with his disabled son or in retaliation for his scheduling requests. Rather, the trial court concluded that at best, plaintiff had shown that his new supervisor was not as generous in accommodating plaintiff as prior supervisors had been.
Accordingly, the trial judge rendered judgment on the company’s behalf, as well as $7,592.08 in costs.
Appellate Court Reverses, Finding the FEHA Required the Company to Accommodate the Son’s Disability
The Court of Appeal noted that cases involving associational discrimination were rarely litigated. The appellate court agreed with Castro-Ramirez that the FEHA prohibits discrimination against employees and prospective employees on the basis of, among other things, physical disability. In that regard, the court stated, “[t]he very definition of a physical disability … includes a perception … that the person is associated with a person ‘who has, or is perceived to have’ a physical disability." Accordingly, when FEHA forbids discrimination based on a disability, the court reasoned that the FEHA also forbids discrimination based on a person’s association with a person who is disabled.
The company offered three arguments that the trial court properly granted summary judgment: (1) that it had no obligation under the FEHA to accommodate the son’s disability; (2) plaintiff failed to show that his association with his disabled son motivated the company to terminate him, and (3) that plaintiff failed to show that the company’s reason for the termination (missing three days of work) was pretextual.
The court, however, rejected these arguments.
Notably, Plaintiff earlier voluntarily dismissed his reasonable accommodation cause of action and, accordingly, did not address the issue in his opening papers in the appellate court. The appellate court, however, resuscitated the claim, bringing the issue to front and center stage, and came to the conclusion that the FEHA’s “plain language” creates a duty for employers to provide reasonable accommodations for employees or applicants who are associated with disabled individuals.2
The appellate majority bootstrapped the reasonable accommodation association claim from the language of the statute prohibiting discrimination based on association with an individual with a disability, even though the duty to accommodate only makes it an unlawful employment practice “[f]or an employer or other entity covered by this part to fail to make a reasonable accommodation for the known physical or mental disability of an applicant or employee.” While the anti-discrimination provision clearly prohibits associational discrimination, the duty to accommodate section lacks this language, instead referring only to employees or applicants. Despite the longstanding rule of statutory construction suggesting that if the legislature wanted to extend the duty to accommodate to third parties it would have explicitly done so as it did in the discrimination provision, the court inserted the obligation into the statute. Specifically, the court stated, “[n]o published California case has determined whether employers have a duty under FEHA to provide reasonable accommodations to an applicant or employee who is associated with a disabled person. We hold that FEHA creates such a duty according to the plain language of the Act.”
Motive and Pretext
The court also found the company’s argument that the plaintiff failed to produce sufficient evidence to create a triable issue of motive and pretext equally ineffectual.
Rather, it zeroed in on the new supervisor's conduct, believing that his behavior created a reasonable inference that the supposed non-discriminatory reason for the termination, not working for three days, was pretextual. Specifically, the court noted:
- Junior knew plaintiff needed to be home at a specific time to administer dialysis to his son;
- The former supervisor reminded Junior about accommodating plaintiff;
- Junior scheduled plaintiff for a shift that would end well after the time he needed to start his son’s treatment;
- Junior gave plaintiff the late-starting shift, despite the fact that he scheduled eight other drivers well before noon and he offered no legitimate reason as to why plaintiff could not have had one of the earlier shifts;
- Plaintiff tried to return the next day for work; and
- The company's policies permit a more lenient form of discipline, rather than termination, for a one-time refusal to work an assigned shift.
Employees generally do not need to use any kind of magic words when complaining to an employer that they believe they are being unlawfully retaliated against. Rather, prior cases have held that mere oral comments can trigger protected activity under the FEHA, so long as the communication sufficiently conveys the concern about unlawful activity.3 Following prior court opinions, the appellate court in the present case determined that Junior’s refusal to accommodate plaintiff's shift request despite requests for accommodation from both the plaintiff and his former supervisor could support a retaliation claim. The court stated, “[e]ven if FEHA did not actually require [the company] to reasonably accommodate plaintiff based on his son’s disability—which it does—plaintiff’s good faith belief that [the company] was acting unlawfully was sufficient.” (Emphasis added).
Justice Grimes wrote a dissent in the case. Justice Grimes noted that plaintiff abandoned his accommodation claim and accordingly, the majority improperly considered it, especially when plaintiff's briefing specifically stated, “this is not an accommodation case." The dissent further noted that the majority’s opinion makes a non-disabled employee disabled by association. Justice Grimes found that nothing in the statute supports this conclusion. Rather than an accommodation, Justice Grimes stated that the employee was entitled to intermittent family leave, which was not addressed by the majority.
What This All Means
The decision is currently binding law in the 2nd Appellate District, which includes Los Angeles Superior Court. There is the possibility that the company will request review from California Supreme Court, which could reverse this decision or could extend the decision throughout the state. If the Supreme Court does not consider the matter, or while such an appeal is pending, other appellate courts may follow the reasoning set forth, or may decline to follow the majority’s activist holding. But this is, for now, a reported decision that requires employers to proceed with caution when confronted with an employee’s or applicant’s request for accommodation to attend to, for example, a disabled family member. Accordingly:
- Employers should consider requests for accommodations related to their family members' disabilities. This same kind of request would also trigger an analysis under federal and state family leave laws, providing the employee is qualified for such leave.
- Train supervisors to be aware of such requests, as well as potential retaliation claims, and to promptly report requests for accommodation related to family member disabilities to human resources (and also train the supervisor’s to not be dismissive of the employees’ requests).
- Never underestimate the value of the interactive process. Engaging the employees in good faith with regard to potential accommodations can be invaluable, even if not ultimately required.
- Think how a jury may view the employer’s actions. For example, an unexplained or factually sketchy reason to disrupt an employee’s schedule so the employee can no longer tend to a child who requires the parent to administer dialysis on an almost-daily basis will never play well before the 12 triers of fact who sit on the jury.