Effective January 1, 2016, an employee’s request for an accommodation for a disability or for religious reasons is considered to be “protected activity” for a retaliation claim under the Fair Employment and Housing Act (“FEHA”).
Existing law requires an employer covered by the FEHA to provide reasonable accommodation of, among other things, a person’s disability and religious beliefs and prohibits discrimination against an employee because the person has opposed any practices forbidden under the act or because the person has filed a complaint. Assembly Bill 987, which was signed July 16, 2015, amends the language of the FEHA to prohibit an employer from retaliating or otherwise discriminating against a person for requesting accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was granted.
To establish a valid claim for retaliation, an employee must show that: (1) he or she engaged in a protected activity; (2) experienced an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action. Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69. Supporters of this bill maintain that the change in the language clarifies the original intent of the FEHA and properly overturns the holding in Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635. Prior to the passing of Assembly Bill 987, the Rope holding provided that a mere request for leave as an accommodation did not qualify as a “protected activity” under the FEHA because such a request did not oppose any conduct forbidden by the FEHA. The change in the FEHA language now permits an employee to use a request for an accommodation as evidence of engaging in a protected activity, thereby allowing the employee to meet the first requirement of a retaliation claim. See CA Govt. Code §§ 12940(l)(4), 12940(m)(2).
A request for an accommodation alone, without more, is now considered a protected activity for the purposes of a retaliation or discrimination claim under the FEHA. Accordingly, employers must be cognizant of prior requests for accommodation before making any adverse employment actions. Additionally, employers should remember the importance of written documentation of an employee’s poor work performance. Without evidence of legitimate, non-discriminatory and non-retaliatory reasons for termination, or an adverse employment action, it will be difficult for employers to defeat a prima facie claim of discrimination and/or retaliation under the FEHA even if an employer regularly accommodates an employee’s requests for disability or religious accommodations.