Employee Allowed to Pursue Claim of Discrimination Based Upon Intent to Donate Organ

Kidney-037A California appellate court demonstrated the considerable extensiveness of the rights of employees to be free from discrimination in the workplace with its recent decision in Rope v. Auto-Chlor System of Washington, Inc. The court concluded that the employer’s decision to fire an organ-donating employee rather than comply with a newly effective law expanding the rights of organ donors violated the Fair Employment and Housing Act, as it constituted improper discrimination against an employee based upon his association with a person with disabilities. The ruling shows the risk employers undertake when they take adverse employment actions against employees with disabilities, or even those who actions are motivated by an association with a person with disabilities.

Auto-Chlor hired Scott Rope in September 2010. At that time, the employee informed the employer that his sister suffered from kidney failure and that he would be donating a kidney to her the following February. The employee later learned of the Michelle Maykin Memorial Donation Protection Act (DPA), which offers up to 30 days paid leave for organ donors, and sought paid leave for his February absence. Despite receiving only positive performance reviews, the employer terminated the manager on Dec. 30, two days before the DPA became effective, citing poor performance.

The employee sued, citing DPA violations and violations of the Fair Employment and Housing Act (FEHA). The employer asked the trial court to throw the case out, and the judge agreed. On appeal, however, the California Court of Appeal revived part of the employee’s action regarding alleged FEHA violations. The court determined that the employee’s complaint set up a potential case of discrimination based upon the employee’s association with a person with disabilities; namely, the employee’s sister. The court acknowledged that no previous California case had clearly established the parameters of the disability-based association discrimination issue, and looked to a 2004 federal ruling, Larimer v. International Business Machines Corporation, which analyzed the federal Americans with Disabilities Act.

The Larimer case laid out three possible variations of associational discrimination, which it called: expense, disability by association and distraction. The court in Rope’s case decided that he established a plausible claim of the first of these three — expense. The clear implication that a jury could draw, the court concluded, was that the employer terminated Rope before Jan. 1, 2011 to avoid the expense it would incur because of the employee’s association with his sister and the employer’s resulting obligations under the DPA. The court noted that Rope’s case did not neatly match the criteria of the Larimer ruling, but allowed the employee to proceed with his suit, pointing out that the FEHA is more expansive that the ADA and that the FEHA must be “liberally construed to promote and accomplish its purposes.”

California’s laws designed to protect employees against improper discrimination and adverse actions in the workplace are especially broad, as the Rope case demonstrates. If your employer has taken wrongful action against you because of your disabilities, or your association with a person with disabilities, your employer may be in violation of the law and you may be entitled to certain remedies. To learn more about your rights, and whether you have a discrimination case against your employer, consult the Oakland employment law attorneys at the Law Offices of Stephen M. Fuerch. The attorneys at the Law Offices of Stephen M. Fuerch offer experienced, knowledgeable and determined representation to victims of workplace discrimination. Contact us through our website or call our office at (925) 463-1073 to schedule your confidential initial consultation today.

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New Statute Widens the Parameters of California’s Non-Discrimination Protections, Oakland Personal Injury Attorney Blog, Oct. 15, 2013