New California Law: Requesting an Accommodation is a “Protected Activity”


By: Allison Shrallow

As the law now stands, it is exceedingly difficult for an employer in California to defeat a retaliation claim. To establish a prima facie case, an employee need only establish he engaged in protected activity and shortly thereafter suffered an adverse employment action. Courts have held for the purpose of establishing a prima facie case, temporal proximity—alone—is sufficient to establish a causal link between these two events. The FEHA defines protected activity as opposition to any practices forbidden under the FEHA or filing a complaint, testifying or assisting in any proceeding under the FEHA.

As long as the employee reasonably believes the employer’s actions or practices are prohibited by the FEHA, he is protected against retaliation regardless of whether his opposition or complaint is ultimately found meritless or false. In an all too common scenario, a poorly performing employee—determined to keep his job—files a meritless complaint in hopes it will deter his employer from terminating him for fear of a retaliation lawsuit. Unless the employer has an extensive paper trail documenting the employee’s performance issues prior to him filing the complaint, the employer finds itself in a lose-lose situation: either terminate the employee and risk litigation or continue employing someone who would have been terminated but for his filing a complaint.

In 2013, California employers won a small—albeit, short-lived—victory in the case, Rope v. Auto-Chlor System of Washington, Inc. The Rope court held that requesting an accommodation does not constitute a protected activity under the FEHA. Thus, while, in most instances, an employee terminated after requesting an accommodation still has recourse against his employer for failing to engage in the interactive process and to accommodate his disability; the employee’s retaliation claim could not withstand a Demurrer or Motion for Summary Adjudication.

To the dismay of California employers, on July 16, 2015, Governor Brown signed AB 987, effective January 1, 2016, which amends the FEHA to include a request for an accommodation on the basis of religion or disability as a protected activity—regardless of whether the accommodation is granted. This amendment effectively overturns the holding in Rope and augments the FEHA’s anti-retaliation provisions in conformity with Federal law, California’s Pregnancy Disability Act and California Family Rights Act—of all which include requesting an accommodation as protected activity.

Come January 1st, employers must be cautious and should consult with legal counsel prior to demoting, disciplining, providing a negative performance review of or terminating an employee shortly after he requests an accommodation. The attorney can counsel the employer to ensure it has sufficient documentation of its legitimate business reasons for taking the adverse action. Finally, employers should update their Employee Handbooks to include a non-retaliation policy for employees who request an accommodation for disability or religious purposes, regardless of whether the accommodation is granted.