Associational Discrimination Under FEHA

FEHA provides a cause of action for plaintiffs who suffer associational discrimination. California Government Code § 12926(n) says discrimination on the basis of physcial disability “includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.”

The Second District Court of Appeal recently addressed this unusual issue in a case involving a plaintiff who, when hired by the employer, advised the employer he would need some time off in six months because he was donating one of his kidneys to his sister. The employer nevertheless hired plaintiff.

So far, so good.

But then, the Donation Protection Act (“DPA”), contained in California Labor Code §§ 1508-1513, became effective requiring employers to provide up to thirty-days of paid leave for organ donors. Two days before the law went into effect, plaintiff was fired, ostensibly because of poor performance, despite the fact plaintiff received satisfactory performance reviews and was never disciplined.

Plaintiff sued employer for, among other things, associational discrimination under FEHA. Defendant demurred and the court sustained the demurrer and plaintiff appealed.

The court looked to Larimer v. International Business Machines Corp., 370 F.3d 698 (7th Cir. 2004) for guidance since there were no reported California cases addressing this issue.

The Larimer court described three types of associational discrimination, one of which was “expense.” This covers the situation in which the employee suffers an adverse personnel action because the employer will suffer some expense as a result of the employee’s association with a person with a disability.

Here, the court determined plaintiff did state a cause of action because he alleged that he was not terminated until the DPA was going into effect which changed the whole scenario because when plaintiff was hired, he would only have received unpaid leave, but the new law required employer to provide thirty-days of paid leave.

So imagine that!

Now we have a reported case in California addressing this issue.

Rope v. Auto-Chlor System of Washington, Inc., 220 Cal.App.4th 635 (2013).

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