A bunch of probationary police cadets sued the Los Angeles Police Department for disability discrimination under FEHA and related causes of action. All of them were injured while cadets, and they accused the LAPD of discrimination after they were all discharged. The case went to trial and the jury awarded the former cadets over $12 million! And the court awarded $1,632,110 in attorney’s fees to plaintiffs’ counsel!
The party was short-lived, however, because the LAPD appealed to the Second District Court of Appeal. The future economic damages award of over $6 million was overturned, and the case remanded for a new trial on this issue. The court also determined that there wasn’t substantial evidence to support the jury’s verdict that the LAPD discriminated against plaintiffs.
So what rights to probationary employees have under FEHA? Reassignment, as a reasonable accommodation, possibly, because FEHA applies to probationary employees and pre-probationary employees. Simply because an employee is probationary doesn’t mean that FEHA protections do not apply. The Court said, “We decline to read into FEHA a limitation on an employee’s eligibility for reassignment based on an employee’s training or probationary status.”
Instead, the Court said, the trier of fact should consider whether an employee is on probation or in training in determining whether a particular reassignment is comparable in pay and status to the employee’s original position. The Court further asserted that as a practical matter, and I guess as a legal matter, there is no difference between a probationary employee and an at-will employee because employers ordinarily can terminate probationary and at-will employees without good cause, notice or a hearing.
So the question is whether or not a probationary employee is qualified for reassignment. An employee is qualified for reassignment if the employee could perform the essential functions of his or her original position. If that’s the case, then the question of reassignment is a question of reasonable accommodation.
Atkins v. City of Los Angeles
2017 WL 588127 (February 14, 2017)
2017 Cal. App. LEXIS 115