New California Law Relaxes Requirements For Disability Discrimination Claims

Disabled job applicants and employees may pursue claims for disability discrimination and for failure to reasonably accommodate their disabilities under the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA). California Assembly Bill (AB) 2222, which Governor Davis signed on September 30, 2000 and which takes effect on January 1, 2001, makes it substantially easier to pursue such claims under FEHA than under the ADA. Key changes created by AB 2222 are addressed below.

Mitigating Measures

In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the United States Supreme Court ruled that, under the federal ADA, the determination of whether an individual is "disabled" and therefore entitled to pursue a cause of action, should be made after taking account of measures, such as eyeglasses and contact lenses, that mitigate the person's impairment. That decision was a major defeat for the federal Equal Employment Opportunity Commission (EEOC), which advocated the opposite position.

AB 2222 explicitly rejects that holding of Sutton with regard to the California FEHA. AB 2222 states that the issue of whether a person has a mental or physical disability under FEHA "shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity." Consequently, a seriously myopic person, whose vision is 20-20 with contact lenses, is nevertheless "disabled" for purposes of FEHA but not under the ADA.

"Limits" Versus "Substantially Limits" A Major Life Activity

The ADA defines a "disability" as including "a physical or mental impairment that substantially limits one or more major life activities." 42 U.S.C. § 12102(2)(A). Although the word "substantially" does not appear in the definition of disability under FEHA, one district of the California Court of Appeal has held that the state language should be interpreted in the same way as the federal requirement. Several other districts have disagreed with respect to mental impairments under FEHA.

AB 2222 resolves the dispute by declaring that "the definitions of 'physical disability' and 'mental disability' under the laws of this state require a 'limitation' upon a major life activity but do not require as does the Americans with Disabilities Act of 1990, a 'substantial limitation.' This distinction is intended to result in broader coverage under the law of this state than under the federal act." AB 2222 further provides that "A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult." Similarly, AB 2222 states that "A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult." The meaning of the word "difficult" in this context will undoubtedly be the subject of much litigation.

"Working" As A "Major Life Activity"

"Working" is one of the "major life activities" addressed by the ADA and FEHA. In Sutton v. United Air Lines, the U. S. Supreme Court explained that, under the ADA, "When the major life activity under consideration is that of working, the statutory phrase 'substantially limits' requires, at minimum, that plaintiffs allege they are unable to work in a broad class of jobs." For example, a police officer arguably would not be "disabled" if the officer could work as a patrol officer in a car, but due to allergies was unable to serve as a mounted police officer on a horse. The Court cited the Equal Employment Opportunity Commission's regulation stating that the individual must be "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j). In Hobson v. Raychem, the California Court of Appeal noted last year that "all California courts which have interpreted the FEHA, have uniformly" reached that conclusion.

That is no longer the law under FEHA. AB 2222 provides that "under the law of this state, 'working' is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments." In other words, a person will now be considered "disabled" under FEHA because of a physical or mental condition which makes it "difficult" for that person to perform only one particular job out of tens of thousands of types of jobs.

FEHA (and the ADA) defines "disability" as either (a) having the disability or (b) "being regarded" by the employer (accurately or not) as disabled or (c) having a record of such an impairment. Numerous federal court opinions under the ADA have held that a "regarded as" claim cannot survive unless the employer regarded the employee or applicant as substantially limited in the ability to perform either a class of jobs or a broad range of jobs in various classes. However, as a result of AB 2222, being regarded by the employer as limited in the ability to perform one single job is now sufficient under FEHA to be a "disabled" person.

AB 2222 confirms what is already well known among human resource professionals and employment law specialists: that FEHA and the ADA are traps for unwary and well meaning employers. Rather than rely on common sense, which may be at odds with the law, employers should seek professional advice before making significant decisions relating to "disabled" applicants and employees.