In July 2015, Governor Brown signed legislation designed to overturn the decision in Rope v. Auto-Chlor System of Washington Inc.  The case involved an employee who was asking his employer for an accommodation to take a future leave of absence in order to donate a kidney to his sister.  As discussed below, the case raises many issues that employers should be aware of, especially the new law effective 2016 making requests for accommodations a protected activity.

1.    AB 987 makes a request for reasonable accommodation a protected activity

AB 987 was signed into law by Governor Brown on July 16, 2015, which amends Section 12940 of the Government Code and becomes effective January 1, 2016.  The law was passed to overturn the court’s ruling in Rope v. Auto-Chlor System of Washington Inc.  In the case, Plaintiff Rope alleged he suffered retaliation for engaging in the FEHA “protected activities of requesting leave for his sister’s disability/medical condition.”  FEHA makes it illegal “[f]or any employer … to discharge … or otherwise discriminate against any person because the person has opposed any practices forbidden under this part….” (Gov. Code, § 12940, subd. (h).)

To state a claim of retaliation under FEHA, a plaintiff must show: (1) he engaged in a protected activity, (2) he was subjected to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action.

The issue in the case was whether a request for an accommodation could be a protected activity?  The defendant argued that the plaintiff did not engage in a protected activity because he did not claim to have “`oppose[d] any conduct forbidden'” by FEHA, and the court agreed.  The court held that an employee’s request for paid leave in order to donate one of his kidneys to his sister was not a protected activity.  The court stated:

Nevertheless, we find no support in the regulations or case law for the proposition that a mere request — or even repeated requests — for an accommodation, without more, constitutes a protected activity sufficient to support a claim for retaliation in violation of FEHA. On the contrary, case law and FEHA’s implementing regulations are uniformly premised on the principle that the nature of activities protected by section 12940, subdivision (h) demonstrate some degree of opposition to or protest of the employer’s conduct or practices based on the employee’s reasonable belief that the employer’s action or practice is unlawful.

In response, the legislature passed AB 987 and the Governor signed the bill into law.  The law makes an employee’s request for an accommodation a protected activity for which the employer cannot take any adverse employment actions against the employee because of the request.  AB 987 states:

Notwithstanding any interpretation of this issue in Rope v. Auto-Chlor Sys. of Washington, Inc., (2013) 220 Cal. App. 4th 635, the Legislature intends (1) to make clear that a request for reasonable accommodation on the basis of religion or disability is a protected activity, and (2) by enacting paragraph (2) of subdivision (m) and paragraph (4) of subdivision (l) of Section 12940, to provide protection against retaliation when an individual makes a request for reasonable accommodation under these sections, regardless of whether the request was granted.

2.      Complaints only made internally to employer are not sufficient to state a claim under the whistle blower statute, Labor Code section 1102.5

Plaintiff Rope also alleged that the company violated Labor Code section 1102.5, which prohibits an employer from adopting a policy to prevent an employee from divulging to a government or law enforcement agency information the employee reasonably believes discloses a violation of a state or federal law, retaliating against an employee who reveals such information to a governmental agency, or from retaliating against an employee who refuses to engage in conduct that would result in a violation of a statute.

The court held that the plaintiff did not have a viable whistle blower claim under Labor Code section 1102.5 because he did not report his suspicions of unlawful activity to any governmental agency, or that he refused to violate the law at the request of his employer.  His internal complaint to the company “does not trigger whistle blower protection under Labor Code section 1102.5. (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77 [§ 1102.5, subd. (b) “does not protect plaintiff, who reported his suspicions directly to his employer”].).”

3.    Donation Protection Act – Requires employers to provide up to 30 days of paid leave for employee who donates an organ

One of the issues in the case  involved the Donation Protection Act (DPA).  The DPA provides that as of January 2011, private employers with 15 or more employees must grant “[a] leave of absence not exceeding 30 days to an employee who is an organ donor in any one-year period, for the purpose of donating his organ to another person.”

4.    Plaintiffs can assert FEHA claims if they are not disabled but are “associated with a person who has or is perceived to” be disabled

FEHA provides that it is unlawful for “an employer, because of the … physical disability … of any person, to … discharge the person from employment … or to discriminate against the person … in terms, conditions, or privileges of employment.” (§ 12940, subd. (a).)  The statute also prohibits discrimination on the basis of physical disability “includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.” (§ 12926, subd. (n)).

To state a FEHA claim, a plaintiff need only “show that: he or she was a member of a protected class; was qualified for the position he sought; suffered an adverse employment action, and there were circumstances suggesting that the employer acted with a discriminatory motive.”

The court reasoned that the plaintiff’s request for leave under the DPA would cause the employer to incur certain expense; and the facts could support a reasonable inference is that the employer acted preemptively to avoid an expense stemming from plaintiff’s association with his physically disabled sister.

5.    Anticipated disability is not covered under FEHA

The court made it clear that in order to state a discrimination claim under FEHA, a plaintiff must be physically disabled, or have a “disease, disorder, condition, or health impairment that might become a ‘physical disability.’”  Given the facts of this case, the court held that the plaintiff could not state a claim for actual or perceived disability discrimination under FEHA:

 Rope has not established that he is himself physically disabled, and does not claim an ability to cure this fatal defect. At most, Rope alleges only that he anticipated becoming disabled for some time after the organ donation. This is insufficient. Rope cannot pursue a cause of action for discrimination under FEHA on the basis of his “actual” physical disability in the absence of factual allegations that he was in fact, physically disabled.