By Zachary Cantor Principal, Cantor Law
Let’s say your best friend in the world is in a terrible automobile accident. Both her legs are broken, with pins and plates and screws holding everything together. Doctors tell her it’ll take another operation, months of healing and months more of rehab before she can even consider returning to her normal life.
She lives alone. She has no family in the area.
You’re all she has. So you ask your boss if you can change your work schedule. She needs help bathing, going to the bathroom, and getting her to multiple doctor and physical therapy appointments, to mention a few. Your boss, though, is unsympathetic. She says she needs you to keep your regular shift and repeatedly declines to accommodate you.
What recourse do you have? Well, now you may have grounds to sue for disability discrimination – even though you’re not the one who’s disabled – thanks to a recent decision in the 2nd District Court of Appeal in downtown Los Angeles.
It’s already illegal for an employer to discriminate against a disabled employee, or to discriminate against an employee the company perceives to be, or otherwise treats as disabled or as having a condition that could become disabling.
The April 2016 ruling is remarkable because it has radically expanded the definition of disability discrimination; applying protection under the existing law to an entirely new group of people: those associated with a disabled person.
Here’s what happened. Truck driver Luis Castro-Ramirez sued his former employer, Dependable Highway Express, Inc., alleging causes of action for disability discrimination, failure to prevent discrimination, and retaliation under the California Fair Employment and Housing Act, as well as for wrongful termination.
Castro-Ramirez’s son required daily dialysis, and according to the evidence, the employee had to be the one to administer the dialysis. For several years, the employee’s supervisors scheduled him so that he could be home at night for his son’s dialysis. That schedule accommodation changed when a new supervisor took over and ultimately terminated the employee for refusing to work a shift that didn’t let him get home in time for his son’s dialysis.
An appeal was filed after a Superior Court judge dismissed Castro-Ramirez’s lawsuit in November, 2014.
In reversing that decision, the Court of Appeal held that FEHA is written in a way that creates a duty to provide reasonable accommodations to an employee who is associated with a disabled person. If the employee could perform the essential functions of his job with reasonable accommodation for his son’s disability, and his son’s disability substantially motivated his termination, then the employer could be liable for associational disability discrimination.
The evidence showed reasonable inferences of discrimination. Castro-Ramirez had performed satisfactorily for over three years with the accommodations to his schedule that previous supervisors provided. His termination for refusal to work his newly assigned shift was a pretext for the desire of the new supervisor, responsible for scheduling, to be rid of someone whose associate disability made the supervisor’s job more difficult.
Disability discrimination law is complex to begin with. Before the April Appellate Court decision, employers could not be expected to accommodate requests like Castro-Ramirez’s schedule change. Now, they are arguably covered by State law. Employers need to be extra vigilant about making sure employees who need to care for someone who’s disabled are treated fairly and according to the law.
Zachary Cantor is principal attorney of Cantor Law of Santa Monica. He can be reached at info@cantorlawyers.com or 213.674.0325.
