Governor Signs New California Law to Expand Definition of Protected Activities under FEHA

In July of this year, Governor Jerry Brown signed AB 987 into law. That legislation provided an important benefit to employees seeking religious or disability-related accommodations in the workplace. Under the new law, the act of requesting a disability or religious accommodation is now a protected activity under the Fair Employment and Housing Act. The law reversed a 2013 court decision that expressly concluded that employees could not take action against employers who punished them for seeking accommodations.

The new law came about following the California Court of Appeal’s decision in the case of Rope v. Auto-Chlor System of Washington, Inc. Scott Rope, a branch manager for Auto-Chlor, requested 30 days of paid leave in order to recuperate from kidney donation surgery. He made the request after learning about the Michelle Maykin Memorial Donation Protection Act. Two days before the DPA became effective, Auto-Chlor terminated Rope.

In its 2013 ruling, the appeals court reversed the trial court’s summary judgment on some of the employee’s claims, but the court allowed summary judgment in favor of Auto-Chlor to stand regarding the employee’s claim that the employer impermissibly discriminated against Rope for requesting an accommodation. The court decided that there was nothing in the statutes or regulations stating 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.”

Some observers believed that allowing employers to retaliate against employees for requesting accommodations based upon their religion or a disability would lead employees to fear the repercussions of making an accommodation request and would deter them from seeking those accommodations to which the law entitled them.

AB 987 expressly changes that. Section 1(a) of the bill directly states that a “request for reasonable accommodation based on religion or disability constitutes protected activity under Section 12940 of the Government Code, such that when a person makes such a request, he or she is protected against retaliation for making the request.” The employee is afforded this protection for a religion or disability-based accommodation request regardless of whether the employer provides or refuses the accommodation sought.

The bill went on to state that this expansion of FEHA’s anti-retaliation protections in the workplace mirrors those already in place under the federal law. In addition, the changes to the FEHA bring its level of employee protection in line with the state’s Pregnancy Disability Leave Law and Family Rights Act.

The new law takes effect on Jan. 1, 2016. With the new law in effect, employers will need to tread with special care when terminating or disciplining an employee who recently made a request for an accommodation based upon religion or disability.

The law establishes a number of things you can do as an employee against which your employer cannot retaliate. If you believe you’ve been retaliated against for asserting your rights, contact the Oakland employment discrimination attorneys at the Law Offices of Stephen M. Fuerch. Our employment attorneys have many years of experience helping clients like you who’ve faced discrimination and retaliation in the workplace. Contact us through our website or call our office at (925) 463-2575 to schedule your confidential initial consultation today.

More Blog Posts:

California Supreme Court Says Employers Can’t Recover Costs in Non-Frivolous Discrimination Suits, Oakland Personal Injury Attorney Blog, May 15, 2015

Employee Allowed to Pursue Claim of Discrimination Based Upon Intent to Donate Organ, Oakland Personal Injury Attorney Blog, Nov. 15, 2013

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