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Lawyers for California employers are preparing to challenge a recent state appeals decision in Los Angeles that they say liberalizes the grounds for workplace disability claims and makes the new definition retroactive to cases pending on Jan. 1, 2001. “It’s an outrageous situation,” said Paul Grossman, general counsel for the California Employment Law Council (CELC), referring to the July 24 opinion in Wittkopf v. County of Los Angeles, No. B139304, by the California Court of Appeal’s Second Appellate District, Division Seven. Not only does the unanimous opinion by a three-judge appeals panel broaden the grounds for disability claims under California’s Fair Employment and Housing Act (FEHA), Grossman said, it opens the door for hundreds of potential claims by making the ruling retroactive to any disability case already filed before Jan. 1 of this year, when the Legislature’s FEHA amendments took effect. “There is no question that before (the amendments) everybody believed that the disability definition was modeled after the federal statute,” said Grossman who, in addition to his CELC work representing about 50 of the state’s largest employers, is a partner and employment law specialist at Los Angeles’ Paul, Hastings, Janofsky & Walker. The Wittkopf ruling by Judge Paul Boland, a Los Angeles County Superior Court judge sitting by designation on the appeals panel, contradicts a May 31 ruling by another appeals panel — the Second District’s Division One — and has left judges and lawyers representing employers wondering which path to follow. It’s likely the California Supreme Court will resolve the uncertainty. Alison M. Turner, the outside counsel representing Los Angeles County, the losing side in the Wittkopf case, says the county will appeal the decision. Grossman says his group will file an amicus brief in support of the appeal. The Wittkopf ruling is binding on courts in the Second Appellate District, which includes Los Angeles and Ventura counties, said Grossman. The ruling can also be cited and used by other California courts. “It’s not a surprising decision,” Grossman said. “It’s no secret that Division Seven is the most pro-plaintiff division we have out here.” GAUGING IMPACT The immediate impact of the decision is difficult to gauge, Grossman said. Although retroactivity creates the potential for hundreds of additional claims falling under the new law, Grossman said he is not sure much will happen with those potential cases while there is an unresolved conflict between the two appeals divisions in the Second District. Nevertheless, Grossman said the CELC began counseling employers last year, after passage of the amendments, to prepare to “discuss possible accommodations with a broader group of allegedly disabled” workers. The Wittkopf cases involve Marshall Wittkopf, a 28-year carpentry shop manager with Los Angeles County’s Department of Health Services, who in 1995 had cataract surgery that left him legally blind in one eye. Though he returned to work in 1997 as part of a workers’ compensation claim settlement, Wittkopf was terminated a year later after a physician said his visual disability was a workplace hazard. Wittkopf sued, contending that the county violated FEHA, but a state Superior Court judge granted the county’s motion for summary judgment, adopting the definitions of the federal Americans With Disabilities Act. The trial judge ruled that Wittkopf’s vision had not rendered him disabled because it had not “substantially limited” his ability to participate in major life activities. The Appellate Division, however, reinstated the lawsuit, ruling that the California Legislature, in adopting the FEHA amendments known as Government Code 12926.1, had defined disability as an ailment that “limited,” not “substantially limited,” a major life activity. The court also ruled that the Legislature meant the change to be retroactive.

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