Terminated employee can sue for "Associational Discrimination" under FEHA
 Dec. 3, 2013

On October 16, 2013, a California Court of Appeal ruled that a terminated employee can proceed with a lawsuit claiming "associational discrimination" and wrongful termination in violation of public policy where he alleged that his employer, knowing of his intent to take leave to donate a kidney to his physically disabled sister, fired him two days before the effective date of the Maykin Memorial Donation Protection Act. ("DPA") That law provides for job-protected paid leave of up to thirty days for an employee who is off work as part of an organ donation.

Scott Rope was hired by Auto-Chlor System of Washington, Inc., as a branch manager in September 2010. When he was hired, he told the company that he intended to donate a kidney to his physically disabled sister in February 2011. From October to December, Rope informed company managers and the HR Department that he would need to take leave to recover after the kidney donation. In November, Rope learned that the then-newly enacted law (Labor Code §§1508- 1513), would become effective January 1, 2011. Rope sought 30 days paid leave under the DPA. The regional manager never responded, Rope complained to management that no one had approved his statutory right to take paid leave. Two days before the DPA became effective, Rope was terminated based on poor performance, although his performance reviews were all good.

Rope sued for violation of the DPA retaliation for his participation in a protected activity, associational discrimination under the Fair Employment and Housing Act (FEHA), retaliation and failure to maintain a discrimination free environment in violation of FEHA. A judge threw the lawsuit out, but the Court of Appeal reversed part of the judge's ruling, concluding that Rope could establish claims under FEHA for associational discrimination and failure to maintain an environment free from discrimination. The appellate court also ruled that Rope could make a claim for wrongful termination in violation of public policy.

Rope alleged that Auto-Chlor discriminated against him based on his relationship or association with his physically disabled sister, and his manager's perception that he was or would become physically disabled himself as a result of the kidney donation surgery and his anticipated need for post-surgical accommodations. Associational discrimination claims include "expense" claims, such as where an employee suffers an adverse employment action because the employee's spouse has a disability that is costly to the employer. Here, Rope alleged that Auto-Chlor fired him so that it could avoid the expense of his paid leave under the DPA, which was intended for the exact purpose of facilitating organ donations to persons who are physically disabled. That raised a reasonable inference that his sister's disability was a substantial factor that motivated the employer to make the adverse employment decision.

On the same grounds, the justices concluded that Rope effectively stated a claim for wrongful termination in violation of public policy. FEHA's policy prohibiting associational disability discrimination was sufficiently substantial and fundamental to support such a claim. The court distinguished Rope's associational discrimination from a "regarded as disabled" claim. Rope could not establish a case of actual or perceived disability discrimination based on his own condition and any fear by the employer that he would be disabled as a result of becoming an organ donor.

Rope is unable to proceed to a jury on several of his other claims, including retaliation for his protected conduct of seeking paid leave, and his complaining after Auto-Chlor refused to approve DPA leave. The court reasoned that Rope could not sue under the DPA, as that act substantively changed prior law and there was no legal basis to render it retroactive. In essence, Rope could not allege facts to state a viable claim under the DPA where the statute did not exist until two days after he was terminated. He also lost on his claim that he was retaliated against for seeking leave a reasonable accommodation for his sister's disability and/or medical condition. His request for paid leave as a reasonable accommodation did not qualify as a protected activity under FEHA (it was limited to the DPA). Rope also offered no evidence that Auto-Chlor knew he was engaged in "oppositional activities" at the time of the alleged retaliation.

Finally, he cannot proceed on a whistleblower claim under Labor Code §1102.5, because he did not show that he reported suspicions of unlawful activity to any governmental agency, or that he refused to violate the law. His internal complaints within Auto-Chlor about the company's foot-dragging and failure to approve his leave were insufficient to trigger whistleblower protection. The Court of Appeal was also not persuaded that he could establish liability for an "anticipatory" or "preemptive" retaliation because he had planned to file a complaint with a state or federal agency.

For labor, employment and education law questions, call us at (602) 448-4051 or email to PEyres@Eyreslaw.com Our Business is Keeping Your Business Out of Court TMİ 2013 Proactive Law Press, LLC. Licensed to Eyres Law Group, LLP

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School, cum laude in 1977. Patti calls herself a "recovering litigator," who knows first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/Publisher of Proactive Law Press, LLC, , Eyres supervises the production and publication of books, training materials and educational products for business owners, public school administrators, front-line leaders, HR and Risk Managers. She can be reached at peyres@eyreslaw.com or 480-607-5847.

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