Associational Disability Discrimination

Luis Castro-Ramirez (“Luis”) sued his former employer, Dependable Highway Express, Inc. (“DHE”) for disability discrimination, failure to prevent discrimination, and retaliation under the Fair Employment and Housing Act (“FEHA”) as well as wrongful termination in violation of public policy.

Luis’ son requires daily dialysis.  Luis is the only person in his household who knows how to operate the dialysis machine for his son.  One has to take classes to learn how to operate the machine.

Luis informed the recruiting manager who hired him at DHE of his daily obligations.  For three years, DHE was able to accommodate him by providing shifts that allowed Luis to return home to care for his son.  Luis’ son had to be connected to the dialysis machine for 10-12 hours per day.

For several years, Luis’ supervisors scheduled him so that he could be at home at night for his son’s dialysis.  A new supervisor refused to accommodate Luis’ schedule and terminated Luis for refusing to work a shift that did not permit Luis to be home in time for his son’s dialysis.

The facts are not in dispute.

The trial court granted summary judgment to DHE.  The Court of Appeal, in a 2-1, decision, reversed.

“FEHA provides a cause of action for associational disability discrimination, although it is a seldom-litigated cause of action…. The very definition of a “physical disability” embraces association with a physical disabled person.  FEHA explains that the phrase “’physical disability’… includes a perception…that the person is associated with a person who has, or is perceived to have” a physical disability [Govt. C. §12926(o)].  Accordingly, when FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person’s association with another who has a disability.

The Court acknowledges that “no published California case has determined whether employers have a duty under FEHA to provide reasonable accommodation to an applicant or employee who is associated with a disabled person.  We hold that FEHA creates such a duty according to the plain language of the Act.”

The dissenting justice stated, “The majority has gone out of its way to create a cause of action that no party to this appeal contends exists.  The majority reverses the grant of summary judgment on the basis that “the plain language” of FEHA creates a duty to accommodate an employee’s disabled family member – which is simply not so.  The majority has indeed boldly gone into a new frontier, fraught with danger for California employers, a mission best left to the Legislature.”

Luis Castro-Ramirez v. Dependable Highway Express, Inc. (Court of Appeal, 2nd Appellate District, April 4, 2016).