Requesting Accommodation Is a Protected Activity

On July 16, 2015, Governor Brown approved an amendment to Government Code section 12940 prohibiting an employer or other covered entity from retaliating, or otherwise discriminating, against a person for requesting accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was granted.

The legislation stems from the Court of Appeal’s decision in Rope v. Auto-Chlor Systems of Washington, Inc. (2013) 220 Cal.App.4th 635 (interpreting “associational disability”) and other cases holding that a mere request for accommodation is not a protected activity for the purposes of the retaliation provisions in the Fair Employment and Housing Act (Government Code § 12940 et seq.). The Legislature cited a need to bring FEHA into line with the Equal Opportunity Employment Commission’s interpretative guidance regarding federal laws, and with other state statutes (such as the Pregnancy Disability Leave Law and the California Family Rights Act), by clarifying that an employee cannot be retaliated against for requesting a reasonable accommodation for a disability or religious belief or observance.

The new provisions of Government Code section 12940 are found at paragraph 4 of subdivision (l) (regarding religious belief or observance) and paragraph 2 of subdivision (m) (regarding disability). Although the law is not effective until January 1, 2016, employers must ensure any discrimination-related training is updated to include the new language.

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