©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 187 80 Ross v. Ragingwire Telecomm., 42 Cal. 4th 920 (2008). DFEH disability regulations issued in 2012 confirmed that medical marijuana use was not protected. Ragingwire was referenced in the regulation’s history. 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 (9th Cir. 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. Cal., 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 Cal., 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). 92 Castro-Ramirez v. Dependable Highway Express, Inc., 2 Cal. App. 5th 1028, 1038 (2016). The Court of Appeal modified its decision to withdraw the holding, while continuing to suggest that FEHA may reasonably be interpreted to require accommodation based on an employee’s association with a physically disabled person. 93 See, e.g., Larimer v. IBM Corp., 370 F.3d 698, 700 (7th Cir. 2004). 94 2 Cal. Code Regs. § 11065(p). 95 Id. §§ 11065, 11069. 96 Id. §§ 11065, 11069. 97 Id. § 11068(b). 98 42 U.S.C. § 1981a(3) (in ADA cases where a discriminatory practice involves the provision of a reasonable accommodation, compensatory and punitive damages “may not be awarded under this section where the covered entity demonstrates good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business”). 99 Wallace v. Cnty. of Stanislaus, 245 Cal. App. 4th 109, 128 (2016). 100 Arnold v. Dignity Health, 53 Cal. App. 5th 412 (2020). 101 Gov’t Code § 12941. 102 See Gov’t Code § 12941. The statute, effective 2000, overruled Marks v. Loral Corp., 57 Cal. App. 4th 30 (1997), a decision holding that a reduction in force based on salary considerations would not be discriminatory even if it disproportionately affected older workers. 103 Smith v. City of Jackson, 544 U.S. 228, 241 (2005). 104 AB 1687, 2016 bill adding Civ. Code § 1798.83.5(a). 105 IMDb.com, Inc. v. Becerra, 2017 WL 772346, at *1 (N.D. Cal. Feb. 22, 2017) (“It’s difficult to imagine how AB 1687 could not violate the First Amendment.”). 106 29 C.F.R. § 1604.11 (1980). 107 See generally LINDEMANN & KADUE, WORKPLACE HARASSMENT LAW (2012). 108 See 26 U.S.C. § 162(q).
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