Disability Discrimination

FEHA, section 12940(a), prohibits discrimination based on an employee's physical disability. Under the FEHA, it is unlawful “[f]or an employer, because of the... physical disability, mental disability, medical condition... of any person,... to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” Gov. Code, § 12940(a).

To state a claim for disability under the Fair Employment and Housing Act (“FEHA”), a plaintiff must allege he or she:

1. suffered from a disability, or was regarded as suffering from a disability;
2. could perform the essential duties of the job with or without reasonable accommodations, and
3. was subjected to an adverse employment action because of the disability or perceived disability.

Dinslage v. City and County of San Fran. (2016) 5 Cal.App.4th 368, 378; Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310; Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 349; Deschene v. Pinole (1999) 76 Cal.App.4th 33, 44.

“The touchstone of a qualifying [physical] disability is an actual or perceived physiological disorder which affects a major body system and limits the individual's ability to participate in one or more major life activities.” Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1061. Working is a major life activity. Gov. Code, § 12926(m)(1)(B)(iii). A temporary disability may nonetheless qualify as a disability under FEHA. Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 767–68.

A disability “limits a major life activity if it makes the achievement of the major life activity difficult.” Gov. Code, § 12926(m)(1)(B)(ii). Because an assessment must be made to determine how, if at all, the pain affects the specific employee, a plaintiff must sufficiently plead how her disability limits her ability to work. Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327; Green v. State of Cal. (2007) 42 Cal.4th 254, 262-264 (“the FEHA and the ADA both limit their protective scope to those employees with a disability who can perform the essential duties of the employment position with reasonable accommodation.”).

Note that although section 12940 proscribes discrimination on the basis of an employee's disability, it specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties:

This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability... where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.

Gov. Code, § 12940(a)(1).

In addition, to state a cause of action for disability discrimination, retaliation, failure to accommodate, failure to engage in the interactive process or failure to take all reasonable steps to prevent discrimination and retaliation in violation of FEHA, a plaintiff must establish that the employer had knowledge of the disability. Gov. Code, § 12940(m),(n); Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 349; Avila v. Cont'l Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252-53. “Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].” Avila v. Cont'l Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1248-49 (holding that Plaintiff’s submission of medical documentation which failed to provide any work restrictions going forward or any “diagnostic or other information to indicate the nature of [his] illness or injury” was insufficient to put defendant employer on notice that plaintiff was suffering from a qualifying disability).

Failure to Accomodate Disability

Under the FEHA, employers must make reasonable accommodations for employees’ known disabilities so that they can perform a position’s essential functions, unless doing so would produce undue hardship to the employer's operations. Gov. Code, § 12940(m); 2 CCR § 11068(a); see Fisher v. Superior Court (1986) 177 Cal.App.3d 779, 783.

“An employee cannot demand clairvoyance of his employer. First, the employee has a duty to inform the employer that he has a disability. An employer is not ordinarily liable for failing to accommodate a disability of which it had no knowledge.” Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 349 (internal citations, and quotation marks omitted).

Once an employer gains knowledge of the employee’s disability, either from the employee or some other means, the employer has an affirmative duty to make reasonable accommodations for the disability. The employer’s duty arises even if the employee does not request an accommodation. 2 CCR § 11068(a); see Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 949-950 (employer had affirmative duty to make known to disabled employee other job opportunities within company and to determine whether employee was qualified for those positions). Thus, employers must proactively engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations. Gov. Code, §§ 12940(n), 12926.1(e); Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193.

Harassment

FEHA prohibits “unlawful employment practices,” which includes harassment in the workplace based on, among other things, disability and medical condition. Gov. Code § 12940(j)(1). Under FEHA, “harassment” in the workplace can take the form of “discriminatory intimidation, ridicule, and insult” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Rehmani v. Super. Ct. (2012) 204 Cal.App.4th 945, 951; Lyle v. Warner Brothers Telev. Prod. (2006) 38 Cal.4th 264, 283.

“[T]o be pervasive, the harassing conduct ‘must consist of more than a few isolated incidents.’” Hughes v. Pair (2009) 46 Cal.4th 1035, 1048 (not an employment case). Rather it must be “a concerted pattern of harassment of a repeated, routine or a generalized nature.” Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131. Depending on its severity, an isolated incident may support a harassment claim. Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1421 (a single incident of physical groping may qualify as “severe”); see also Hughes v. Pair (2009) 46 Cal.4th 1035, 1049 (a single incident of a physical assault or the threat thereof may qualify as “severe”); Rehmani v. Super. Ct. (2012) 204 Cal.App.4th 945, 951-952 (noting that the severity or pervasiveness depends on the totality of circumstances).

Retaliation

The elements of a retaliation claim under the FEHA are as follows:

1. he or she engaged in a “protected activity,”
2. the employer subjected the employee to an adverse employment action, and
3. a causal link existed between the protected activity and the employer's action.

Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Gov. Code §12940(h).

Protected activity under the FEHA includes requesting accommodation for a disability. Gov. Code, § 2940(m)(2); see also Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1341 (holding the plaintiff stated retaliation claim under the FEHA, where the plaintiff “was fired because she sought reasonable accommodations for her disability”).

Summary Judgment

Succinctly stated, on summary judgment plaintiff must establish a prima facie case of discrimination/retaliation. If defendants provide a legitimate, non-retaliatory explanation for their acts, the burden shifts to plaintiff who must show that defendants' proffered explanation is merely a pretext for retaliation/discrimination. McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317; Moore v. Regents of the University of California (2016) 248 Cal.App.4th 216, 234.

To establish a prima facie case of discrimination Plaintiff must provide evidence that she,

1. suffered from a disability, or was regarded as suffering from a disability;
2. could perform the essential duties of the job with or without reasonable accommodations, and
3. was subjected to an adverse employment action because of the disability or perceived disability.

See above; see also Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310, citing Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254.

Because an assessment must be made to determine how, if at all, the pain affects the specific employee,’ a plaintiff must sufficiently plead how her disability limits her ability to work. Smith v. Constellation Brands, Inc. (9th Cir. 2018) 725 Fed.Appx. 504, 506, citing Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327.

The proximity in time between the claimant's temporary disability and the denial of her promotion may support a prima facie case for disability discrimination as to that employment action. Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 353 (“Because the employee's burden of establishing a prima facie case under McDonnell Douglas is fairly minimal, the temporal proximity between an employee's disclosure of his symptoms and a subsequent termination may satisfy the causation requirement at the first step of the burden-shifting process.”)

Administrative Remedy

Under California law, an employee must exhaust the administrative remedy provided by the FEHA, by filing an administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) and obtaining the DFEH’s notice of right to sue, “before bringing suit on a cause of action under the act or seeking the relief provided therein....” Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.

To exhaust his or her administrative remedies as to a particular act made unlawful by the FEHA, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. Id. In the context of the FEHA, the failure to exhaust an administrative remedy is a jurisdictional, not a procedural defect, and thus the failure to exhaust administrative remedies is a ground for a defense on summary judgment. Id.; Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890.

Statute of Limitations

FEHA actions must comply with two limitations periods. First, an administrative complaint must be filed with the DFEH within 1 year of the alleged FEHA violation. Gov’t Code, §12960(d). “Under FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing... and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA.... The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under FEHA.” Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492 (citations omitted).

Second, once DFEH issues a right-to-sue letter, a lawsuit must be filed within 1 year from the issuance of that letter. Gov’t Code, §12965.