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Facing employers at a recent law conference sponsored by Littler Mendelson in Monterey, Calif., Neil Alexander asked how many members of the audience could not drive or read without eyeglasses. Hands went up all across the room. “You’re all disabled,” Alexander said matter-of-factly. Alexander, a partner in Littler’s Phoenix office, wasn’t being tongue-in-cheek. He was dead serious. Lawyers who represent employers are steadily sounding the alarm about a series of 6-month-old amendments to California’s discrimination laws that they say expose the state’s business proprietors to irrationally broad disability discrimination claims. “Whereas previously there was a little bit more of a process for determining whether an employee had a disability and required an accommodation, now virtually any employee has a potential for accommodation,” says Robert Spagat, a partner in the labor and employment department of Thelen Reid & Priest. Adds Paul Grossman, general counsel for the employer-oriented California Employment Law Council: “We’re seeing people who have a bad arm or a bad leg — a limp — and under federal law, they wouldn’t meet the standard [for accommodation], but under California law, they arguably do now. Basically, employers in California are having to treat as disabled people who aren’t really disabled.” Grossman and other employer lawyers are sounding off more and more about Government Code Section 12926.1. Approved by the state Legislature last year as Assembly Bill 2222, the law — called the Prudence K. Poppink Act after a deceased administrative law judge with the Fair Employment and Housing Commission — makes it clear that California’s Fair Employment and Housing Act offers vastly broader discrimination protection than the federal Americans with Disabilities Act. The amendments, which went into effect on New Year’s Day, expand the definition of disability to include physical or mental impairments that merely limit a major life activity, even a work-related social activity. The ADA required a “substantial limit” on a major life activity, whereas California now defines limiting as making achievement of a major life activity only “difficult.” Furthermore, the amendments, unlike the ADA, do not permit employers to consider mitigating factors such as medication, corrective lenses or prosthetic devices, which might allow an employee to continue working. They also give employees more rights to be accommodated for a particular job, rather than to be offered a broad range of alternatives, and they require employers to engage in an interactive dialogue with the disabled employee in trying to reach an accommodation. “This just confirms California’s reputation as the most anti-employer-litigation state in the union,” says Grossman, who’s also a partner in the employment law department of Los Angeles’ Paul, Hastings, Janofsky & Walker. “AB 2222 is the single worst piece of employment legislation to come out of the current administration.” Attorneys who represent employees say that’s not true and that their defensive adversaries are just frustrated that the Legislature has decided to reinforce state protections that courts had steadily undermined. “The reason they hate this is that they’ve been kicked out of pig heaven,” says Brad Seligman, executive director of The Impact Fund, an employee rights group in Berkeley. “FEHA has always provided broader protections, yet the defense bar had convinced many federal and state court judges to ignore those differences.” In fact, he and other plaintiffs’ lawyers say employers were getting disability discrimination cases kicked out of court on summary judgment between 80 percent and 85 percent of the time. That won’t be as easy now under California law, both plaintiffs’ and defense lawyers say. “When it comes to summary judgment, it’s going to be much more difficult for the employers to prevail,” says Lawless & Lawless partner Therese Lawless, who represents employees. “We’re now going to get to try our cases in court, and that’s what we want.” Judges, though, are the ones who have weakened the disability discrimination laws in the past, Seligman says. “So,” he adds, “that’s why the Legislature tried to speak as clearly as it did here.” In fact, legislators took the unusual step of codifying their intent that FEHA provide greater protections than the ADA. The amendments also clearly reject three 1999 U.S. Supreme Court rulings that allowed employers to consider mitigating factors, such as medication and eyeglasses, in determining whether someone was disabled and needed accommodation. “The individual still has to prove he or she has been discriminated against,” says Caroline Jacobs, staff attorney at Oakland’s Disability Rights Advocates. “It just means more people can fall within the scope of the definition of disability.” “The big hurdle,” she adds, “is proving, as it should be, whether that person was discriminated against, as opposed to fighting over what their disability is.” Plaintiffs’ lawyers had gotten worried as courts had increasingly found that ailments such as cancer, asthma and diabetes were not disabilities. In one extreme case, one former employee rights lawyer noted, an amputee was found not disabled because his prosthetic leg was considered a corrective device. “The bar was so high that many conditions were not legally cognizable disabilities,” says Jo Anne Frankfurt, an administrative law judge with the state’s Fair Employment and Housing Commission. “What California legislators have done is say, ‘We are not going to raise the bar that high.’ “ Littler’s Alexander, a veteran of more than 100 ADA cases, admits that employers will have it tough and that more cases will likely go to trial. “They’ve systematically, through this legislation, taken away most of the employers’ defenses,” he says. Still at issue, though, is whether the amendments are retroactive. If so, that could affect literally thousands of cases already in the courts. If the amendments simply clarify existing law, as plaintiffs’ lawyers claim, they would likely be retroactive. If they completely change the law, as defense attorneys contend, they probably wouldn’t. So far, one case each has come down on different sides of the debate. Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245, contains language indicating that the FEHA amendments would be retroactive, but Colmenares v. Braemar Country Club Inc., 01 C.D.O.S. 4465, rejected Jensen, holding that the amendments are not retroactive. Both rulings came out of Los Angeles’ Second District Court of Appeal — Jensen from Division Four on Dec. 5 and Colemenares from Division One on May 31. “It would be terrible for a court to apply this statute retroactively because it so clearly changes the rules of what’s covered and what’s not covered,” says Spagat of Thelen. “And for a legislator to say it doesn’t change the law,” he adds, “to me that’s an outrageous effort to try and usurp the court’s function and put a political agenda into the statute in a really blatant way.” Employer lawyers have begun advising their clients to be very careful in their dealings with employees over disabilities, making sure they revise their guidebooks and actively working with employees seeking accommodation. Still there are unknowns. “There’s no big book out there that says, ‘If it’s this, it’s a disability and if it’s this, it’s not,’ ” says Susan Kemp, the labor law help-line manager for the Sacramento-based California Chamber of Commerce. For example, says Diane Kimberlin, a Littler partner in Los Angeles, will employers now have to accommodate employees too shy to attend the social activities at company picnics, and will personality conflicts force employers to provide employees with new supervisors? “This is one area where employers are going to want more certainty than they’ll get,” she says. “Unfortunately, I don’t think there is a set of rules.” Defense lawyers also expect a major rise in litigation as time goes by and fear that the amendments could just add to California’s economic woes. “Employers throughout the economy are looking for ways to cut corners,” Spagat of Thelen says. “And all these unique California laws make it more difficult to do so. This is just another brick in the wall — a reason why it’s more expensive and unpredictable to do business in California.”

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