If an employee wears glasses, has high blood pressure or was once diagnosed with a life-threatening disease, is he or she disabled?
Based on recent amendments to California’s disability legislation, the answer could be yes. The amendments to a state bill, which became effective at the beginning of this year, are blurring the lines that traditionally define whether an employee is disabled. The amendments open up broad interpretations that employees’ attorneys say could bring more lawsuits against employers and more settlements, likely in the employees’ favor.
“It’s creating a higher burden for California employers,” said Jim Kuns, senior consultant at the Employers Group, a Los Angeles-based association representing 5,000 employers in California. “If they’re making a decision of whether to move to another state, this is one more thing to consider.”
Century City attorney Lee Feldman said he expects the 80% of disability discrimination cases that currently go to summary judgment to be reduced to about 20% as a result of the new legislation. That will bring more cases to settlement and fewer thrown out. Feldman represents employees in disability cases.
“Yes, it will result in more lawsuits, and it will increase the cost of doing business because they’re going to be litigating cases they otherwise might have thrown out,” he said. “But passing the Civil Rights Act of 1964 had the same result. Society has to make a choice.”
Already, California’s reputation is less than business-friendly. Just last week, a $90 million judgment against Farmer’s Insurance Exchange required the Los Angeles-based company to pay overtime wages to claims adjusters, who previously were considered white-collar workers exempt from overtime rules.
Two cases, both in Los Angeles, have gone through appeal, contesting whether an employer is subject to the state’s new disability legislation,even if the action in question took place before the new law was passed. One case ended with a statement that the old and new state laws were retroactive; the other claimed the opposite.
The new legislation also has brought to light cases that previously may not have been at issue.
In a case against the Los Angeles Police Department, a recruit was demoted to desk duty and later fired after his hearing impairment became a problem. He claimed he was discriminated against; the city argued that a police officer needs to have perfect hearing. Although the plaintiff didn’t win, Kuns said the case would not have gotten to appeal without the new state amendments.
Unlike the Americans with Disabilities Act, the federal law that prohibits discriminating against people with disabilities, the California law opens up the definition of a disability. That means an employee does not have to be missing a limb or blind to be considered disabled, as with the federal law. High blood pressure, bad eyesight or obesity may fall under the state law.
“Is everyone with glasses going to demand a bigger monitor or computer because maybe they forgot their glasses that day? No. Most likely there will be situations where there is a clash between managers and employees, and claims will be brought saying [that clash] is the result of a disabling situation,” said Diane Kimberlin, partner at Littler Mendelson PC in Los Angeles.
But the broadened definitions also may result in increased costs and time for employers, who will be forced to find accommodations,such as additional leave time, reshuffling of schedules and work assignments, temporary help or a bigger computer screen,for employees, Kuns said.
In addition, the amendments do not consider “mitigating measures,” such as eyeglasses or medication, in determining whether someone is disabled. Even if someone takes corrective measures on their own to accommodate their disability, the employer may be required to provide a workplace that accommodates their disability anyway.
Proponents said that by broadening the definition of disability, employees have more rights to sue employers who, for no other reason than because of their disability, fire them.
Meanwhile, federal case law may head down the path of California’s legislation. In April the U.S. Supreme Court agreed to hear two cases that will determine whether a repetitive stress injury can be considered a disability. n
Bronstad is a staff reporter at the Los Angeles Business Journal.
