USA May 27 2021

Excerpts from the full article here https://www.aalrr.com/newsroom-alerts-3850

“In Brown v. Los Angeles Unified School District Dist. (2021) 60 Cal.App.5th 1092, the Court of Appeal addressed the limits of what constitutes a “disability” for purposes of the California Fair Employment and Housing Act (“FEHA”) and found that “electromagnetic hypersensitivity” (“EHS”) as pled by plaintiff was a triable issue.”

Brown v. Los Angeles Unified School District

Although federal courts had not recognized EHS as a disability for purposes of ADA, in Brown v. Los Angeles Unified School District, the plaintiff claimed that Los Angeles Unified School District (“LAUSD”) failed to accommodate her disability under FEHA, which provides broader protections than the ADA.

In 2015, LAUSD installed a new Wi-Fi system at the plaintiff’s work site. Following the installation, the plaintiff claimed she began experiencing various symptoms she attributed to the Wi-Fi system, including chronic pain, headaches, and nausea. The plaintiff was diagnosed with EHS by her medical provider, and LAUSD attempted to provide accommodations by disconnecting Wi-Fi access points in the plaintiff’s classrooms. The plaintiff claimed her symptoms persisted, and LAUSD then agreed to conduct a neutral examination of the Wi-Fi radio frequency but ultimately reneged on the agreement more than a year later.

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The Court of Appeal found that the plaintiff adequately pled that she had a “disability” under FEHA despite recognizing that federal courts had found that EHS was not a recognized “disability” under the ADA. Because FEHA is broader than the ADA and provides independent protections, the plaintiff’s claim that she had a physical condition that affected a major life activity (working) was sufficient regardless of whether EHS was formally recognized.

Key Takeaways

Employers should be aware that California courts will construe FEHA broadly when determining whether an individual has a qualifying “disability.” Plaintiffs need only plead they have a mental or physical disability that affects a major life activity to proceed to trial, regardless of whether they have a condition formally recognized by the medical community or the ADA (such as EHS).

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Employers should also note the Court of Appeal ruled that the plaintiff adequately pled LAUSD failed to provide her with reasonable accommodations. LAUSD had reneged on its prior agreement to provide an accommodation, and while the Court of Appeal found that reneging was not proof of failure to engage in the interactive process, it was proof of failure to accommodate. “‘[R]easonable accommodation’ envisions an exchange between employer and employee in good faith…. LAUSD’s actions here do not align with those of an employer taking positive steps to accommodate the employee’s limitations….” (Brown v. Los Angeles Unified School District Dist., supra, 60 Cal.App.5th at p. 1108.) If an employer agrees to an accommodation and later reneges on that agreement, it should clearly document the reasons for its decision and reengage in the interactive process to determine whether there are other reasonable accommodations.

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https://ehtrust.org/california-appellate-court-rules-that-electromagnetic-hypersensitivity-may-qualify-as-a-disability-under-feha/ Source: Environmental Health Trust