I was in LA not too long ago. It was the first time I had been to southern California. What a great place, with lovely weather, a beautiful ocean and lots of places to see and visit. And speaking of California, I have been looking at their anti-discrimination statute, which is called the Fair Employment and Housing Act (FEHA). As I wrote in a previous post, California has created a separate and independent claim for failure to engage in good faith in the interactive process. In the research that I did, no other states have this as a separate claim. There is a requirement that an employer and employee engage in the interactive process, but no claim if it is not done. I think there should be to ensure that all possible accommodations are explored before determining that an impasse has been reached.
Another provision that can’t help but catch your attention is the state’s definition of disability. In almost all other states (including Minnesota) a disability is defined as a “physical or mental impairment that substantially (or materially in Minnesota’s Human Rights Act) limits a major life activity. In contrast, California defined a disability as an impairment that “limits” a major life activity, or that limits the “achievement” of a major life activity. This is a much more expansive and easy to reach standard than those imposed on employees in so many other states and under the federal law, the Americans with Disabilities Act.
Finally, the California FEHA has a list of conditions that are per se disabilities, like the EEOC has proposed in its recently released proposed regulations. These conditions include HIV/AIDS, hepatisis, epilelsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease. Including a list of per se disabilities is the best way to ensure that defendants/employers don’t try to play the game of arguing that a disabled employee isn’t disabled, as happened in this disability discrimination case involving Abercrombie & Fitch.