Are California Employers Required to Provide Reasonable Accommodations for Disabilities?

In the recent case of Brown v. Los Angeles Unified School District, the Second District Court of Appeal confirmed that California law requires employers to provide reasonable accommodations for an employee's disabilities.

Appellant Laurie Brown (Brown) had been a teacher employed by the LAUSD since 1989. In 2015, LAUSD installed an updated Wi-Fi system at the school where Brown taught.

Brown soon began to experience headaches and nausea, and she believed the electromagnetic frequency of the new wireless system was the cause. She requested various accommodations from LAUSD, but ultimately sued, alleging LAUSD discriminated against her based on her “electromagnetic hypersensitivity,” failed to accommodate her condition, and retaliated against her—in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).

Brown contended the trial court erred in sustaining the LAUSD's demurrer to her complaint because she pled sufficient facts in support of each of her claims.

The appellate court concluded Brown adequately pled her cause of action for failure to provide reasonable accommodation for her disability, and reversed the sustaining of the LAUSD's demurrer on that cause of action only.

In 2012, LAUSD commissioned URS Corporation (URS) to consult with LAUSD about replacing the existing Wi-Fi system at Millikan Middle School (Millikan) with one that would accommodate iPads, Chromebooks, and tablets LAUSD intended to provide its students.

LAUSD requested public comment on the proposed new Wi- Fi system. Cindy Sage, an environmental scientist and expert on electromagnetic frequency (EMF), stated she could not support URS’s conclusions about the safety of the new Wi-Fi system.

During a May 28, 2014, school board hearing, LAUSD’s “medical personnel” presented a power point presentation indicating they were uncertain about any long-term effects the Wi-Fi system may have on students and staff. LAUSD promised to continue actively monitoring any developments.

In 2015, Brown began teaching at Millikan. Later that year, in April 2015, LAUSD installed and began operating the upgraded Wi-Fi system at Millikan. Brown thereafter experienced chronic pain, which she alleged was caused by the new Wi-Fi.

Brown filed a complaint that alleged five causes of action pursuant to FEHA:

1) Discrimination based on physical disability;

2) Failure to accommodate;
3) Failure to engage in the interactive process;

4) Retaliation; and

5) Failure to prevent discrimination and retaliation.

In its demurrer to all five causes of action, LAUSD contended Brown’s alleged disability, electromagnetic sensitivity, is not a “recognized” disability.

The Legislature has stated its intent that “physical disability” be construed so that employees are protected from discrimination due to actual or perceived physical impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.

FEHA states a “physical disability” includes, but is not limited to, any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine; and limits a major life activity.

Major life activities shall be broadly construed and include physical, mental, and social activities and working.

The complaint alleged that Brown could not work because she experienced the various symptoms of which LAUSD had been warned could occur, namely, chronic pain, headaches, nausea, itching, burning sensations on her skin, ear issues, shortness of breath, inflammation, heart palpitations, respiratory complications, foggy headedness, and fatigue, all symptoms of Microwave Sickness or EHS. These described symptoms affect one or more of the body systems listed in the statute and limited Brown’s major life activity of working as a teacher at Millikan.

Although the federal Americans with Disability Act does not “recognize” EHS, the appellate court held it is immaterial to its interpretation of the FEHA. Brown adequately pled physical disability within the four corners of the California statute.

An employer must provide a reasonable accommodation for an applicant or employee with a known mental or physical disability unless the accommodation would cause undue hardship.

Failure to do so is an unlawful employment practice.

To establish a failure to accommodate claim, Brown must show:

1) she has a disability covered by FEHA;

2) she can perform the essential functions of the position; and

3) LAUSD failed reasonably to accommodate her disability.

A “reasonable accommodation” means a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.

Although an accommodation is not reasonable if it produces an undue hardship to the employer, a plaintiff need not initially plead or produce evidence showing that the accommodation would not impose such an undue hardship.

Once notified of a disability, the employer’s burden is to take positive steps to accommodate the employee’s limitations. The employee also retains a duty to cooperate with the employer’s effort by explaining his or her disability and qualifications.

Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee’s capabilities and available positions.

If a reasonable accommodation does not work, the employee must notify the employer, who has a duty to provide further accommodation.

LESSONS:

1.         Every employer in California has a duty to provide reasonable accommodations for an employee's disabilities, unless the accommodation would cause undue hardship to the employer.

2.         "Physical disability” is broadly construed so that employees are protected from discrimination due to actual or perceived physical impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.