It's Who You Know: Disability by Association

People who call me usually think they have more rights than they actually do in the workplace. For example, did you know that if you needed to take care of a disabled grandparent, sister or brother, your employer could fire you for it and there would be nothing you could do about it? At least, that was true until recently.

 Protection for people with disabilities is covered in California under the Fair Employment & Housing Act ("FEHA"). The FEHA requires that employees with a disability be given a reasonable accommodation to perform the essential functions of their job, if that wouldn't make an undue hardship for the employer.

The FEHA is a good, reasonable law -- the word "reasonable" is built right into it. So employers aren't required to anything unreasonable at all. Also, if the employer can demonstrate that an accommodation would present an undue hardship, it's off the hook.

Now, FEHA defines someone with a disability as anyone who themselves have a disability, or is associated with someone with a disability (as well as some other circumstances which don't matter here). So does an employee who is associated with someone with a disability (like a disabled grandmother) have a right to a reasonable accommodation at work?

Until recently, this was an unanswered question. Now, though, a friend and colleague, Doug Silverstein of Kesluk & Silverstein, won an appeal before the Court of Appeals addressing this issue.

The plaintiff in that case, Mr. Rope, alleged that he needed to take time off to donate a kidney to his disabled sister. Mr. Rope alleged further that, rather than give him the time off, his employer fired him.

Heartless, yes, but not everything that's heartless is also illegal. Did the employer's alleged actions here break the law?

Yes, said the Court of Appeals. The Court of Appeals ruled that, since FEHA defines "disability" as including someone associated with a disabled person, then that someone by definition has a disability as well, and has a right to a reasonable accommodation (for example, time off from work without getting fired).

Be careful, though, said the Court of Appeals. Ever suspicious of us rapacious plaintiff's attorneys and of all of you rotten employees out there who prepare spurious cases, the court gave us a warning: "Our holding should not be interpreted as a siren song for plaintiffs who, fearing termination, endeavor to prepare spurious cases by talking up their relationship at work to a person with a disability; such relationships do not, by themselves, give rise to a claim for disability discrimination." Somewhere in its opinion, I'm sure the Court of Appeals also warned off employers who, having torn their own hearts from their chests as a still-beating blood-sacrifice on the altar of Capitalism, prepare spurious reasons to terminate their disabled employees. I'm sure it's in there somewhere if I keep reading; I just haven't found it yet.

This opinion really advanced the law in this area (although there are some worrisome parts in there about other issues, but that's a topic for another day). This fills in a huge gap that's existed in the law for quite some time. People with caretaking responsibilities for disabled relatives have placed their livelihoods at risk when they've had to attend to their family members. Hopefully, this decision will give their jobs some needed protection.