We previously reported that the California Court of Appeal for the Second Appellate District held that an employer’s denial of accommodation to a nondisabled employee may serve as evidence of association discrimination under the California Fair Employment and Housing Act. Castro Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal. App. 5th 1028.  In Castro Ramirez, the employee alleged that he was terminated from employment after he made complaints about changes to his work schedule which impacted his ability to be at home during his disabled son’s dialysis treatments. On the surface, this seemed like a claim for reasonable accommodation (i.e., a modified work schedule) by a non-disabled employee and we all know that only disabled folks are entitled to receive reasonable accommodations.  Easy decision, right?  Wrong.

The Court of Appeal held that the California Fair Employment and Housing Act (FEHA) makes it unlawful to discharge a person based on physical disabilities or other characteristics, including the association with a person who has or is perceived to have any of those characteristics. Again, by itself, this holding is not controversial because the ADA contains a similar provision prohibiting discrimination on the basis of an association or relationship with a person with a disability. What made Castro Ramirez different, and what continues to concern California employers, is that employers must provide reasonable accommodations to individuals who do not, by ADA terms, have a disability.  As one dissenting judge observed, the Court has gone “where no one has gone before, to find a California employer may be liable under FEHA for failing to accommodate a nondisabled employee’s request to modify his work schedule to permit him to care for a disabled family member.”

On November 30, 2016, the California Supreme Court denied Dependable Highway Express’ petition for review, effectively putting an end to the case.  Because of the denial and because the case has not been depublished, all California trial courts now are bound by this authority unless and until there is a conflicting Court of Appeal published decision.  California employers should review policies and practices in responding to all disability accommodation requests, even those of non-disabled employees associated with others in protected categories.  At a minimum, employers must have a legitimate, non-discriminatory reason for denying the accommodation.  However, given the mischief caused by Castro-Ramirez, it appears employers may need to consider expanding the scope of employees potentially entitled to reasonable accommodations under FEHA.   With leave management already a major Human Resources challenge, employers must closely review this decision.  Please contact Jackson Lewis with any legal questions about disability policies and practices.