Seeking an Accommodation is Protected Activity

For awhile, getting fired when seeking a workplace accommodation did not rise to the level of retaliation. In 2013, the California Court of Appeals held that requesting an accommodation was not a protected activity as needed to make a finding of retaliation. Generally, to be protected activity, the employee’s act must oppose conduct that would violate the Fair Employment and Housing Act. The court found that simply making the accommodation request was insufficient. The result was absurd. If an employee required an accommodation for a disability to do his job, and made such a request, the employer could take a negative action, including termination, against the employee leaving him without recourse.

After almost 2 years, to rectify the ramifications of the appellate decision, the California legislature signed AB 987 into law. AB 987 overturns the holding in Rope v. Auto-Chlor System of Washington, Inc. and makes it illegal for an employer to retaliate or otherwise discriminate against an employee for making a request for disability (or religious) accommodation. This law has a direct impact on accommodation decisions. Employers striving to avoid litigation should make every effort to consider accommodation requests before denying them or taking any adverse action against the employee.

In this instance, employee protections have been broadened but that does not absolve employees of all responsibility. When you are in need of an accommodation for disability or religion, be sure to work with your employer on possible accommodations that would allow you to perform the essential functions of your job. Although your employer may have to accommodate you, that is not the case when there is no reasonable accommodation or the accommodation would cause your employer an undue hardship. There are further considerations which will affect your right to an accommodation and you should consult with legal counsel before approaching your employer and learn your rights.

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