Scott Rope worked for Auto-Chlor System of Washington, and advised his employer at the start of employment that he would need to take time off to donate a kidney to his sister in the near future. He asked for paid time off under the soon-to-be effective law known as the Michelle Maykin memorial Donation Protection Act (DPA). He was fired two days before the act became effective. The trial court dismissed his claims on various grounds, including that the act was not effective on the date of his termination. The Court of Appeal yesterday announced that he would in fact have standing to sue and his case will go forward. This blog will focus on his claim of “associational” disability under the Fair Employment and Housing Act.
This California Fair employment and Housing Act provides that an employer may not fire an employee based on the physical disability of any person. The law then states that @…physical disability includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.” (Gov’t Code 12926(n).
To state a claim, the employee only needs to show that he or she was a member of a protected class,; was qualified for the job held or sought; suffered an adverse employment action and circumstances suggest a discriminatory motive. There has been, the court notes, only one prior case in which the disability of a third party has been discussed. As both the state and federal disability discrimination laws cover the same subjects, and since state law is broader and more liberally applied, the court may look to federal precedent and did so in this case, looking to Larimer vs. IBM, 370 F3d 698 (7th Cir 04). In that opinion, the court defined these categories as “expense, disability by association and distraction. Some examples given included an employee’s spouse who has a costly disability (let’s say covered by the spouse-employer’s health plan); a life partner or significant other with, say, AIDS, which the employer worries might be spread by the employee-partner, and; inattention at work because the employee’s attention is distracted by the ailing family member. This case was based on the Americans with Disabilities Act or ADA.
This court found that Mr. Rope’s claim was “expense” disability discrimination since he was asking for paid leave. The California Court of Appeals concludes that “a reasonable inference is that Auto-Chlor acted preemptively to avoid an expense stemming from Rope’s association with his physically disabled sister”.
The court also stated that the associational disability must be a “substantial motivating factor” in the employer’s decision, thus reinforcing the recent Harris vs City of Santa Monica ruling which changed existing law from “motivating factor” to “substantial motivating factor”.
Mr. Rope was also allowed to proceed with his claim for termination in violation of public policy. The ruling notes that FEHA’s policy of preventing disability discrimination in employment is sufficiently substantial and fundamental to support a claim for wrongful termination. The underlying purpose of FEHA remains one to safeguard the right of all California’s to hold employment without experiencing disability discrimination.
Danz & Associates practices wrongful termination, disability discrimination based on age, sex, physical and mental condition, injured workers and–yes!–associational disability in all of our California offices. Please feel free to call Steve Danz to discuss your case.