In response to a disturbing ruling in a California court of appeal case, the legislature passed, and the Governor signed, an amendment to the California Fair Employment and Housing Act. The amendment clarifies the law by specifically prohibiting discrimination or retaliation against employees or others who request an accommodation due to religion or disability.
In 2013, in a case known as Rope v. Auto-Chlor System of Washington Inc., the Second District Court of Appeal found that the dismissal of an employee for requesting an accommodation based on disability was not a violation of the FEHA. The Act prohibits discrimination not only against persons or employees on the basis of disability but also against persons who oppose unlawful acts of discrimination. Under the Act, such opposition is deemed a protected activity. In this case, the court found that requesting an accommodation was not a protected activity.
In the Rope case, the employee had requested time off for the purpose of donating a kidney to his sister. Although the employer had advised him that he could have an unspecified amount of unpaid time off, it did not respond to requests he had made for paid time off. The paid time off would have been required of the employer starting on January 1, 2011 under the Donation Protection Act, which requires certain employers to grant up to 30 days paid time off for organ donation. Mr. Rope made the request in November of 2010 for the surgery, which was scheduled in February 2011. He was fired for poor performance two days before the DPA went into effect.
The state legislature, in response to pleas from advocacy groups, passed AB 987, a bill that amended the FEHA. The bill very specifically states that a request for accommodation on the basis of disability is a protected activity under the FEHA. Although not at issue in the Rope case, the new law includes requests for accommodation for religious purposes as a protected activity. The advocacy groups had expressed concern that the court’s ruling would have discouraged employees from requesting those accommodations as well.
Sacramento, CA 95821