186 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 55 Cassista v. Cmty. Foods, Inc., 5 Cal. 4th 1050, 1052 (1993) (“weight may qualify as a protected “handicap” or “disability” within the meaning of FEHA if medical evidence demonstrates that it results from a physiological condition affecting one or more of the basic bodily systems and limits a major life activity”) (superseded by SB 559 § 10 on other grounds). 56 Cornell v. Berkeley Tennis Club, 18 Cal. App. 5th 908 (2017) (reversing a summary judgment for an employer that, in challenging the plaintiff’s assertion that her obesity qualified as a disability, failed to present scientific or expert evidence that the obesity lacked a physiological cause). 57 Gov’t Code § 12926(o). 58 Rope v. Auto-Chlor Sys. of Washington, Inc., 220 Cal. App. 4th 635, 642 (2013) (superseded by statute on another ground); see also Castro-Ramirez v. Dependable Highway Express, Inc., 2 Cal. App. 5th 1028, 1037 (2016) (employee’s association with physically disabled person is itself considered a disability under FEHA). 59 See Gov’t Code § 12940(d), (e). 60 2 Cal. Code Regs. § 11069. 61 Gov’t Code § 12940(e)(2). 62 Gov’t Code § 12940(e)(3). 63 The job offer should not be contingent on anything other than the medical examination. See Leonel v. Am. Airlines, Inc., 400 F.3d 702 (9th Cir. 2005) (unlawful under ADA and FEHA to require medical exam where job offer was also contingent on passing a background check). 64 Gov’t Code § 12940(e). 65 42 U.S.C. § 12112(d)(3) (employer “may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination if ... all entering employees are subjected to such an examination”); Gov’t Code § 12940(e)(3) (“employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that ... all entering employees in the same job classification are subject to the same examination or inquiry”). 66 Gov’t Code § 12940(e)(3). 67 42 U.S.C. § 12112(b)(6) (employers must not “us[e] qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity”); Gov’t Code § 12940(e)(3) (employers and employment agencies must not “require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties [unless] the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry”). 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 Cal., 132 Cal. App. 4th 97, 102 (2005), rev’d, 42 Cal. 4th 254, 264 (2007). 75 Green v. State of Cal., 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).
RkJQdWJsaXNoZXIy OTkwMTQ4