188 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 68 42 U.S.C. § 12112(b)(6) (“qualification standards, employment tests [and] other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities” are permitted where “the standard, test or other selection criteria ... is shown to be job-related for the position in question and is consistent with business necessity”). 69 Gov’t Code § 12940(e) (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification ... for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.”). 70 42 U.S.C. § 12112(b)(6) (“examination or inquiry” permitted where “shown to be job-related and consistent with business necessity.”); Gov’t Code § 12940(f)(2) (“examinations or inquiries” permitted where employer “can show [the examination or inquiry] to be job related and consistent with business necessity”). 71 DFEH v. Avis Budget Grp., Inc., FEHC Dec. No. 10-05-P (Oct. 19, 2010). 72 Gov’t Code § 12940(a). 73 Gov’t Code § 12940(a)(1). See also 2 Cal. Code Regs. § 11067(b) (inability of employee or applicant to perform the job is a defense that the employer must prove). 74 Green v. State of California, 132 Cal. App. 4th 97, 102 (2005), rev’d, 42 Cal. 4th 254, 264 (2007). 75 Green v. State of California, 42 Cal. 4th 254 (2007). 76 Id. at 271-73 (Werdegar, J., dissenting) (citing 2 Cal. Code Regs. § 7293.8(b)) (further arguing that the California Legislature had acquiesced in this agency interpretation by leaving it undisturbed when the Legislature amended the FEHA). Green has been followed consistently since. E.g., Castro–Ramirez v. Dependable Highway Express, Inc., 2 Cal. App. 5th 1028, 1037 (2016); Wallace v. Cnty. of Stanislaus, 245 Cal. App. 4th 109, 137-38 (2016). 77 Health & Safety Code § 11362.5(d) provides: “Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” While California led the way, at least 32 other states (together with the District of Columbia) have now enacted similar laws. Gonzales v. Raich, 545 U.S. 1, 5 n.1 (2005). www.governing.com/gov-data/safety-justice/state-marijuana-laws-map-medical-recreational.html (last visited Feb. 22, 2023) (“Thirty-three states and the District of Columbia currently have passed laws broadly legalizing marijuana in some form.”). 78 The Compassionate Use Act has identified each as an example of a condition treated with medicinal marijuana. Health & Safety Code § 11362.5(b)(1)(A). 79 Health & Safety Code § 11362.785 (emphasis added). 80 Ross v. Ragingwire Telecommunications, 42 Cal. 4th 920 (2008). DFEH disability regulations issued in 2012 confirm that medical marijuana use is not protected. Ragingwire was referenced in the regulation’s history. 2 Cal. Code Regs. § 7294.3(d)(2)(A). 81 Id. at 933-37 (Kennard, J. dissenting). 82 See Cnty. of Tulare v. Nunes, 215 Cal. App. 4th 1188, 1196 (2013). 83 2 Cal. Code Regs. § 11071(d)(2)(A). 84 Espindola v. Wismettac Asian Foods, Inc., 2022 WL 2287437 (9thCir. June 24, 2022) (reversing summary judgment on FEHA claims and holding triable issue exists as to plaintiff’s disability discrimination claim, failure to accommodate, and failure to engage in interactive process claims). 85 2 Cal. Code Regs. § 11069. 86 Gov’t Code § 12940(n). See, e.g., DFEH v. Avis Budget Grp., Inc., FEHC Dec. Case No. 10-05-P (Oct. 19, 2010) (finding employer’s repeated delays in requiring the plaintiff to submit to exam by employer’s doctor and failure to respond to numerous inquiries by plaintiff, while plaintiff was on unpaid leave of absence, violates § 12940(n)). 87 Wysinger v. Auto. Club of S. California, 157 Cal. App. 4th 413, 425 (2007) (employer ignored arthritic employee’s requests for a transfer that would shorten a long commute; FEHA allows independent cause of action for employees whose employers fail to engage in the interactive process; this provision does not require proof of the elements required by the ADA; federal ADA cases that hold that employers are not liable for refusal to engage in an interactive process are therefore inapposite). But see Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 979-81 (2008) (California courts should follow federal rule that employer is liable for failing to engage in good-faith interactive process only if a reasonable accommodation was available). The Court of Appeal, in Scotch v. Art Institute of California, 173 Cal. App. 4th 986, 994-95 (2009), reconciled Wysinger and Nadaf-Rahrov to hold that an employee must identify a reasonable accommodation that was available when the interactive process should have occurred. 88 Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 166 Cal. App. 4th 952, 965-66, 971 (2008) (reviving disability discrimination claim of employee dismissed when her physician said she could not perform “work of any kind,” because that information pertained to the current position and not all vacant jobs potentially available in the foreseeable future; substantial physical restrictions did not self-evidently prevent plaintiff from performing vacant desk jobs for which she was otherwise qualified; discovery commissioner erred in limiting request to stores in just two cities, even if plaintiff was not entitled to nationwide discovery); Prilliman v. United Airlines, 53 Cal. App. 4th 935, 950-51 (1997) (“employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship”). 89 2 Cal. Code Regs. § 11068(c). 90 Sanchez v. Swissport, Inc., 213 Cal. App. 4th 1331, 1338, 1341 (2013) (plaintiff could proceed with FEHA disability claim even though already receiving 19 weeks of pregnancy leave; PDLL leave augments, rather than supplants, leaves set forth elsewhere in FEHA). 91 Gov’t Code § 12940(l)(4).
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