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Tuesday, April 19, 2016

Associational Disability

In The Politics of Autism, I discuss employment of people on the spectrum. A recent study (see post for November 3) confirms what has long been obvious:  they face discrimination in hiring and employment.  But so do their family members

A release from Farella, Braun + Martel:
On April 4, 2016, a California Court of Appeal set new precedent in Castro-Ramirez v. Dependable Highway Express, opining that the California Fair Employment and Housing Act (FEHA) may require employers to reasonably accommodate non-disabled employees who are associated with a person with a disability.
Plaintiff Castro-Ramirez alleged that he needed to be at home each night to administer his son’s daily dialysis, as he was the only person who could do so. For several years, plaintiff’s supervisors at Defendant Dependable Highway Express, Inc. (DHE) scheduled him to allow for that home presence. The schedule accommodation changed when a new supervisor took over and ultimately terminated plaintiff for refusing to work a shift that did not permit him to be home in time for his son’s dialysis.
Plaintiff alleged causes of action for disability discrimination and related claims under the FEHA. Notably, plaintiff had abandoned his failure to accommodate cause of action, so that claim was not before the court. The trial court granted DHE’s motion for summary judgment on the ground that the FEHA did not require DHE to accommodate care for the son’s condition.
In reversing that summary judgment, the California Court of Appeal, Second District, noted that associational disability claims are “a seldom-litigated cause of action,” and “[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.” However, the court held that the “very definition of a ‘physical disability’” under FEHA creates a duty to accommodate employees associated with persons with disabilities. Thus, “[a]n association with a physically disabled person is itself a disability under FEHA.” The court acknowledged its departure from federal law under the Americans with Disabilities Act, which “requires accommodations only for applicants or employees who themselves have disabilities,” finding that the ADA language is materially different than the FEHA.
This opinion counsels employers to carefully consider accommodation requests based upon disabilities experienced by employees’ family or household members. When presented with such requests, the employer should engage in an interactive process with the employee, consider accommodation alternatives, and consult knowledgeable counsel regarding the obligations imposed by the FEHA. A failure to engage in the interactive process or provide accommodations in violation of the FEHA may subject the employer to disability and failure to accommodate claims, including possible economic and emotional damages as well as attorneys’ fees.
Luis Castro-Ramirez v. Dependable Highway Express, Case Nos. B261165 and B262524 (April 4, 2016).