The breadth of the protections provided to employees by California’s Fair Employment & Housing Act (“FEHA”) (Government Code Sections 12940, et. seq.) is made dramatically evident in the Second Appellate District, Division 1, opinion in Scott Rope v. Auto-Chlor System of Washington, Inc. 2013 S.O.S. B242003.
Scott Rope was hired by Auto-Chlor as a branch manager on September 7, 2010. At the time of his hiring, he informed his employer that in February 2011 he was scheduled to be an organ donor to his sister. After he became aware of the Michelle Maykin Memorial Donation Protection Act (“DPA”) that provides certain private sector employees with up to 30 days of paid leave for organ donation (Cal. Labor Code §§ 1508-1513), he requested his leave be paid. He further advised Auto-Chlor that he needed an accommodation upon return to work. Auto-Chlor granted Rope a leave of unspecified duration, but without pay. Auto-Chlor subsequently terminated Rope for poor work performance only two days before the effective date of his donor leave, notwithstanding that Rope’s personnel records contained only positive reviews. Rope sued his employer for a wide array of claims, including the employer’s violation of DPA, discrimination in violation of the FEHA and wrongful termination in violation of public policy.
Auto-Chlor attacked the complaint as soon as it was filed. The trial court sustained the demurrers, concluding that the complaints could never be sufficiently amended to state a cause of action. The Court of Appeal affirmed trial court’s dismissal and reasoned that since the effective date of the DPA was January 1, 2011, and Rope was terminated December 30, 2010, the DPA was not effective when Auto-Chlor fired Roper such that the employer was not subject to the DPA’s provisions.
However, the Court of Appeal also found that the broad terms of California’s FEHA protected Rope, and that an employer cannot discharge an employee or discriminate against an employee on the basis of the employee’s association “with a person who has or is perceived to have … the characteristics of physical disability.” Cal. Gov’t. Code § 12926(n). The court found that the “pivotal purposes of the statute are to prevent, eliminate and remedy work place discrimination. FEHA must be liberally construed to promote and accomplish its purposes.”
Acknowledging that there had been no California cases interpreting the term “disability by association,” the court reviewed Larimer v. International Business Machines Corporation (7th Cir. 2004) 370 F.3rd 698, a federal decision interpreting the ADA, which sets forth three bases for disability by association: expense, disability by association, and distraction. The Court found that although Rope’s case does not fall entirely within any of these three examples, his complaint alleged the minimum facts necessary to pursue litigation on the basis of expense discrimination because he alleged that his requested leave “under the DPA would cause Auto-Chlor to incur certain expense.” The court concluded that “the reasonable inference is that Auto-Chlor acted preemptively to avoid an expense stemming from Rope’s association with his physically disabled sister.” Accordingly, the Court of Appeal concluded that Rope could proceed with his claims regarding discrimination and wrongful termination claiming that Auto-Chlor violated Labor Code Section 12940(k).
Recognizing the potential for abuse that this case could offer, the court explained the facts here are unusual. “Our holding should not be interpreted as a siren song for plaintiffs who, fearing termination, endeavor to prepare spurious cases by talking up their relationship at work to a person with a disability; such relationships do not, by themselves, give rise to a claim of discrimination.” Rather, the employer’s intention will be evaluated. The court endorsed the federal decisions holding “if the disability plays no role in the employer’s decision … then there is no disability discrimination.” Dewitt v. Proctor Hosp. (7th Cir. 2008) 517 F.3d 944, 952.
This case emphasizes the risk an employer takes in terminating or adversely affecting a benefit of employment for an individual who is disabled or affected by an individual with a disability.
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