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Employers’ worst nightmare has come true. On Tuesday, Los Angeles’ Second District Court of Appeal declared retroactive 7-month-old legislative amendments that provide extremely broad grounds for disability discrimination claims in California. The ruling, by the court’s Division Seven, throws the issue into flux because it directly conflicts with a May 31 decision by the Second District’s Division One. That could eventually force the state supreme court to resolve the split. “This gives the supreme court the option to really evaluate the process,” Joseph Lovretovich, a Woodland Hills, Calif. lawyer whose firm represented the plaintiffs in both cases, said Wednesday. “With just the [earlier] opinion out there before, the court could have just declined to review.” At issue in both cases is Government Code Section 12926.1, which amended state law to make clear that California’s Fair Employment and Housing Act offers vastly broader discrimination protections than the federal Americans With Disabilities Act. The amendments, which went into effect on New Year’s Day, expand the definition of disability under state law to include physical and mental impairments that merely limit a major life activity, as opposed to the ADA, which requires a “substantial” limitation. Furthermore, the amendments do not permit employers to consider mitigating factors, such as medication, corrective lenses and 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 being offered a range of alternatives. Employers had worried that a ruling of retroactivity could affect thousands of suits already in the courts and expose employers to a plethora of claims that previously would have been tossed out on summary judgment. Generally, retroactivity doesn’t apply to amendments that completely change the law, but rather only to those that simply clarify it. That’s why employers and defense lawyers breathed a collective sigh of relief when the Second District’s Division One ruled in May against retroactivity in Colemanares v. Braemar Country Club Inc., 01 C.D.O.S. 4465, saying that the amendments drastically changed the law. But Tuesday’s ruling by Division Seven in Wittkopf v. County of Los Angeles, 01 C.D.O.S. 6288, explicitly rejected Colemanares in holding that the amendments were mere clarifications and thereby are retroactive. “We conclude that the recent amendment to FEHA did not effect a ‘radical change’ in California’s disability civil rights law,” Los Angeles County Superior Court Judge Paul Boland, sitting on the appeal court by designation, wrote in the 15-page ruling. “On the contrary, the change was intended merely to clarify the existing statutory definition of physical disability.” Plaintiffs’ lawyers had long argued that judges were holding disability claimants to the stricter ADA standards rather than California’s more lenient rules. The Second District’s Division Seven agreed Tuesday, noting that “a number of courts have mistakenly equated FEHA’s standard with the more exacting definition in the ADA.” The panelists also chastised their counterparts on Division One for making the same mistake. “ Colemanares,” the court said in a footnote, “ignores the explicit legislative recognition that, at and before the time of [these amendments], the law in California ‘in the area of disabilities provide[d] protections independent from those in the [ADA],’ and had ‘always’ done so.” The ruling sends the case — brought by Los Angeles resident Marshall Wittkopf, who lost his carpentry job in Quart Hill County after becoming legally blind in one eye — back to the Los Angeles County Superior Court. Alison Turner, a partner at Los Angeles’ Greines, Martin, Stein & Richland who represented the county, said Wednesday that she would talk to her client before deciding her next course of action. But she expressed some sympathy for trial court judges having to grapple with employment discrimination cases while the higher courts are in flux. “If you were a Los Angeles Superior Court judge,” she said, “how would you know what to do on these issues?”

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