Monday, July 20, 2015

On July 16, 2015, AB 987 was signed into law by the Governor Jerry Brown which provides a paradigm shift in favor of employees with respect to their retaliation claims. The new law overturns the retaliation holding in Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, and makes it unlawful for an employer to retaliate or otherwise discriminate against a person for “requesting” an accommodation based on religion or disability.

Prior to this law passing, the holding of Rope provided that a mere request for leave as an accommodation did not qualify as a “protected activity” under the Fair Employment and Housing Act (FEHA) because such a request did not oppose any conduct forbidden by the FEHA.

In coming to this conclusion, the court stated in pertinent part as follows:

[W]e find no support in the regulations or case law for the proposition that a mere request — or even repeated requests — for an accommodation, without more, constitutes a protected activity sufficient to support a claim for retaliation in violation of FEHA. On the contrary, case law and FEHA’s implementing regulations are uniformly premised on the principle that the nature of activities protected by subdivision (h) demonstrate some degree of opposition to or protest of the employer’s conduct or practices based on the employee’s reasonable belief that the employer’s action or practice is unlawful. (Citations omitted.)

(Id. at 652.)

Thus, when plaintiff employees would classify their “protected activity” as a request for leave, courts, relying onRope, had the ability to grant summary judgment in favor of employers because such requests did not constitute a “protected activity.” Since AB 987 has been signed into law, employers will be held to an even higher standard, as a mere “request for reasonable accommodation based on religion or disability” now likely constitutes “protected activity” under the FEHA for purposes of retaliation claims. Employers should be aware of this change, and should consider its impact on current and future litigation.