The California Fair Employment and Housing Act (FEHA) protects employees from discrimination on the basis of an employee’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Further, the law prohibits retaliation against an employee for engaging in any protected activity under the act, such as opposing illegal discrimination or filing a complaint.
The law also requires employers to provide reasonable accommodation for an employee’s disability or religious beliefs. So it might seem self-evident that an employer would be prohibited from retaliating against an employee for requesting a religious or disability-related accommodation. Surprisingly, that was not the view of one California appellate court. In the case of Rope v. Auto-Chlor System of Washington, Inc., an employee alleged that his employer retaliated against him for requesting leave as an accommodation for his organ donation surgery. Instead, the Rope Court determined that merely requesting an accommodation was not a “protected activity” under FEHA. Since then, other courts have relied on the Rope decision for finding that requesting an accommodation does not constitute a protected activity.
The drastic ruling in Rope has prompted the California legislature to enact Assembly Bill 987. The bill expressly prohibits 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, whether or not the accommodation request is granted. The legislature drafted the bill to make its intention to protect accommodation requests clear and to expressly reject the holding in Rope.
AB 987 goes into effect January 1, 2016. In the meantime, employers would be wise to exercise caution in handling requests for accommodations so that their conduct is not perceived as retaliatory in nature. Finally, the California mandatory Workplace Discrimination and Harassment posting may be revised later this year to reflect the protection against retaliation for requesting a religious or disability-related accommodation. Stay tuned.