Is Accommodation Required for Association with a Disabled Person?

September 28, 2016 by Dale Brodsky

An employer may be liable under the Fair Employment and Housing Act (FEHA) for firing an employee because of the employee’s association with a person who is disabled or perceived to be disabled, according the Second District Court of Appeal in Los Angeles.

In the case of Castro-Ramirez v. Dependable Highway Express Inc., the plaintiff, a local delivery driver, was hired in 2009.  At the time, he informed the recruiting manager and his immediate supervisor that he was responsible for administering twice-daily kidney dialysis treatments to his 15-year old son.  Until 2013, the driver was given the flexibility he needed to take care of his son.  Then, a new supervisor took charge and assigned him to later-starting shifts, knowing they would be problematic for the driver.  The new supervisor also lied that a customer had complained about him.  At all times, the driver performed satisfactorily with no problems.  On the day the driver was terminated, the supervisor gave him a late shift, which he had to refuse in order to take care of his son.  That very day, the supervisor gave at least eight other drivers early start-times that plaintiff easily could have done.

The driver sued the company for violating FEHA.  The company then sought to have the lawsuit thrown out before trial, arguing that it had no duty to provide reasonable accommodations for his son’s illness, that his association was not the motivation for the termination, and that the driver could not prove the company’s non-discriminatory reason (i.e. that he had refused a job assignment) was pretextual.  The trial court agreed, and the employee appealed.

The Court of Appeal has reviewed this case twice.  In its first decision, the Court sided with the employee, finding that the employer was required to provide reasonable accommodation based on his son’s disability.  But then, the Court granted the employer’s request for rehearing. The second time around, the Court still sided with the employee, but retreated from explicitly ruling that an employer must provide reasonable accommodation to an employee who associates with a disabled person.

Instead, in its 2-1 revised decision, the Court concluded that the plaintiff could proceed to trial on his claims of disability discrimination, failure to prevent discrimination, retaliation, and wrongful termination.  The Court declined to decide whether accommodations were required, but still discussed the issue at length and observed that “it appears to be significantly intertwined” with the prohibition against discrimination.  This discussion, or dicta, prompted the dissenting justice to write an aggressive rebuttal, contending that the majority had, in effect, decided that FEHA does require an employer to reasonable accommodate employees who associate with a disabled person—a conclusion with which the dissenting justice strongly disagreed, and the majority says it did not reach.

The employer in Castro-Ramirez has until the end of October to ask the California Supreme Court high court to review the appellate decision.  The high court may want to have the last word on whether FEHA’s protection of employees from associational discrimination means that employers must provide reasonable accommodations.

The appeal decision is available here.

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