Associational Disability Discrimination: To Accommodate or Not To Accommodate
Both the Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”) contain provisions barring “associational” disability discrimination. However, a new California Court of Appeals case has suggested that the FEHA’s version of associational disability discrimination may require an employer to accommodate an employee associated with a disabled person.
Under Government Code §12926(O), the term “physical disability . . . includes the perception” that a person “is associated with a person who has, or is perceived to have” a physical disability.
The plaintiff in Luis Castro-Ramirez v. Dependable Highway Express, Inc. sued his employer alleging causes of action for disability discrimination, retaliation and wrongful termination in violation of public policy. The plaintiff worked out of Dependable Highway Express, Inc.’s Los Angeles terminal as a local truck driver. The plaintiff’s son needed a kidney transplant, and he was the only one in his household who knew how to operate the dialysis machine. The plaintiff advised Dependable Highway Express, Inc. of his daily obligations to his son at the time he was hired and his supervisors worked with him to ensure his routes ended early enough to get home for his son’s treatments.
In March 2013, Dependable Highway Express, Inc. promoted the plaintiff’s former supervisor, and the new supervisor, despite being advised of the plaintiff’s situation, changed the plaintiff’s schedule so that his shifts ended later. As a result, the plaintiff could not tend to his son’s needs.
Despite the plaintiff’s complaints and customers who likewise asked for the plaintiff to return to his former route, the new supervisor continued to schedule the plaintiff for late routes. Ultimately, the plaintiff refused the late routes and was terminated (although the supervisor wrote this it was a resignation for “refused assignments”).
The Court of Appeals rejected Dependable Highway Express, Inc.’s Motion for Summary Judgment finding that Dependable Highway Express, Inc. discriminated against the plaintiff based on his association with a disabled person, his son. While prior associational disability discrimination cases were based on three criteria not present in the Castro-Ramirez case (expense to employer, fear of infection and distraction of the employee while at work), the Court ruled that all of the plaintiff’s causes of action survived the Motion for Summary Judgment.
Dependable Highway Express, Inc. argued that the plaintiff’s request constituted a “mere request for reasonable accommodation” which under existing law was not a right in an associational disability discrimination case. Federal law and existing California authorities did not allow for accommodation for any person other than an employee with a disability. However, this Court stated:
When section 12940 subdivision (m) requires employers to reasonably accommodate “the known physical . . . disability of an applicant or employee,” (is) read in conjunction with other relevant provisions, subdivision (m) may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person. . . . We only observe that the accommodation issue is not settled and that it appears significantly intertwined with the statutory prohibition against disability discrimination. . . . 1
This case raises a number of troubling issues, not the least of which is the extent of one’s “association” to a disabled person. Employers already face a daunting interactive process with their own employees who are qualified and confront limitations based on a physical or mental limitation. This potential expansion of disability discrimination law is likely destined for the California Supreme Court. Until then, an employer should be aware of the lurking threat of litigation where an employee makes known their association with persons with handicaps or physical limitations.
1 Castro-Ramirez had previously withdrew his accommodation cause of action making the accommodation issue moot.