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On August 29, 2016, a California Court of Appeal backed away from an earlier a decision that employers must accommodate employees based on their association with individuals with a disability. (Castro-Ramirez v. Dependable Highway Express (Aug. 29, 2016) 2016 WL 45066089.) Before the court’s groundbreaking holding in April 2016, as reported in this post, no court had held that the Fair Employment and Housing Act (FEHA) requires an employer to provide a reasonable accommodation for an employee who is associated with a disabled individual. After partially granting the employer’s petition for rehearing, the court stated it was not deciding the issue; however, it noted that the FEHA “may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person.”

Facts

In Castro-Ramirez, Dependable Highway Express (DHE) terminated Luis Castro-Ramirez after he refused to work an assigned shift because he needed to be home by a certain time to administer his son’s dialysis. For approximately three years, Castro-Ramirez’s supervisors accommodated his scheduling needs by assigning him to earlier shifts. However, Castro-Ramirez’s new supervisor, Junior, changed his schedule, making it difficult for Castro-Ramirez to be home to care for his son. Castro-Ramirez repeatedly requested to work his old schedule, but Junior denied those requests.

Eventually, Castro-Ramirez was scheduled to work during a time that prevented him from returning home to administer his son’s dialysis treatment. Castro-Ramirez complained to Junior he would not be able to administer his son’s dialysis treatment if he worked that shift. Junior responded that Castro-Ramirez would be fired if he did not take the later shift. Castro-Ramirez did not work the scheduled shift, but he returned to work the following three days, and each day he was not scheduled. On the third day, another manager informed Castro-Ramirez that he was terminated because he had not worked the past three days. DHE processed Castro-Ramirez’s paperwork as “voluntary resignation” for refusing an assignment.

Disability Discrimination in Violation of the FEHA

Castro-Ramirez sued DHE for disability discrimination, failure to prevent discrimination, and retaliation under the FEHA, as well as wrongful termination in violation of public policy. DHE moved for summary judgment, and the trial court granted DHE’s motion. Castro-Ramirez appealed. In April 2016, the Court of Appeal held, while no previously published California case had determined whether employers have a duty under FEHA to provide reasonable accommodation to an applicant or employee who is associated with a disabled person, “FEHA creates such a duty according to the plain language of the Act.”

DHE petitioned for a rehearing, and the court issued a new decision, vacating its previous decision.  On rehearing, the court stated that since Castro-Ramirez abandoned the reasonable accommodation cause of action, the court was not deciding whether the FEHA imposes a separate duty to reasonably accommodate employees associated with a disabled person. However, the court still discussed at length how the Government Code definition of physical disability encompasses associational disability, and distinguished the FEHA from the Americans with Disabilities Act and federal cases that held an employer was not required to provide a reasonable accommodation to employees who are relatives or associates of the disabled.

Despite its retreat from the initial holding, the court found evidence that Castro-Ramirez’s association with his disabled son was a substantial motivating factor for terminating him, and DHE’s stated reason for terminating him was pretextual. The court determined associational disability discrimination may occur when an employer acts proactively to avoid the nuisance of an employee’s association with a disabled individual. Thus, a jury could reasonably infer the supervisor, Junior, wanted to avoid the inconvenience and distraction of Castro-Ramirez’s need to care for his disabled son, so Junior engineered a situation wherein the employee would refuse to work and Junior could terminate him. Although DHE argued Castro-Ramirez did not have a set schedule, the court noted the three years where DHE provided him with the requested schedule and Castro-Ramirez was able to perform satisfactorily.

Dissenting Opinion

As with the first Court of Appeal decision, Justice Elizabeth Grimes dissented and argued the decision still went too far by determining a jury could reasonably infer DHE discriminated against Castro-Ramirez because the decision hinges on DHE’s failure to accommodate Castro-Ramirez’s request for a different shift. The dissent argued that unless DHE had a duty to provide Castro-Ramirez with a certain schedule to care for his disabled son, there is no evidence to infer that DHE was motivated by Castro-Ramirez’s association with his disabled son or DHE’s stated reason for terminating him was pretext. The dissent noted there is no obligation under the FEHA or the ADA to accommodate Castro-Ramirez’s scheduling requests, nor has law supported this position until now.

Conclusion

Although the court did not expressly recognize an employer’s separate duty under FEHA to provide a reasonable accommodation to employees associated with disabled individuals, the majority’s decision hinged on DHE’s refusal to accommodate Castro-Ramirez’s scheduling request and teed up the issue for other courts to decide. Despite the retreat from the initial holding, the decision on rehearing does little to assure employers that the duty to accommodate will not be extended to employees associated with individuals with disabilities in the near future. Unless this case is appealed to the California Supreme Court, the groundwork for such claims has been established. Accordingly, employers should proceed with caution when faced with requests from employees for accommodations tied to caring for an individual with a disability who is associated with the employee. We will continue to monitor developments in this case, and provide updates as this issue develops.