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A new California state law that expands the definition of what constitutes a disability will make it easier for workers to have their discrimination cases heard in court. “With the passage of AB 2222, California clearly has the strongest [Americans with Disabilities Act] law in the country,” said Brad Seligman, executive director of Berkeley’s Impact Fund, a nonprofit public interest foundation. The amendment to the state’s Fair Employment and Housing Act was intended to draw a bright line between state and federal disability discrimination laws. Lawmakers said the law, which took effect Monday, was a response to California courts that were beginning to interpret relatively broad state laws along the more narrow federal standards outlined in the ADA. “We thought it was necessary because of the bad decisions,” said Seligman, who helped write AB 2222. He added that the state’s definition of disability is stronger than the one in federal law. Under federal law, backed by three 1999 U.S. Supreme Court decisions, courts do not consider a worker disabled if “mitigating measures” — for instance, a hearing aid or medication — are used by the employee to control a condition. But California law says that mitigating measures aren’t factors in determining disability. Under the new law, hearing-impaired workers can still be covered under disability laws even if they use a hearing aid. In lawsuits, those workers would still need to prove they were discriminated against because of their hearing impairment. But both defense and plaintiff attorneys expect more suits to survive summary judgment. The vast majority of cases are about the definition of disability. About 80 percent of disability discrimination cases are dismissed before trial because the plaintiff isn’t considered disabled. Defense attorneys complain that not accepting mitigating measures opens the door for workers with fully correctable and common problems to still claim a disability, like the need to wear glasses. Their concern doesn’t stop there. Another aspect of the law also appears to broaden California’s definition of disability: Although federal law defines a disability as a “substantial” limitation of a major life activity, the modifier “substantial” isn’t used in the state law. State courts had assumed that the state law should reflect the federal one, but the California Legislature made clear in AB 2222 that “substantial” should not be read into the state law. “This is such a broad standard,” says attorney Wendy Lazerson, a partner at the San Francisco, Calif., office of Tampa, Fla.-based Holland & Knight, echoing the concern of other attorneys who represent employers. “I wonder what is not going to be considered a disability.” Of course, that’s not how plaintiffs’ attorneys see it. “The courts and defense bar took the word ‘substantial’ and just ran with it” after the passage of the ADA a decade ago, said plaintiffs’ attorney Noah Lebowitz, an associate at San Francisco’s Schneider & McCormac. The law also says that, for the first time, employers are required to have discussions with disabled workers about what can reasonably be done to accommodate their needs, or face a lawsuit. “It says an employer can’t just close his eyes and close the door to the job. The employer is required to get into a discussion [with the employee] about the job,” Seligman says. He and other plaintiffs’ attorneys say it’s about time employers were held accountable for not dealing with disability issues. They say the law will encourage communication and education in the workplace. When considering summary judgment in disability discrimination cases, many courts require employers to go through an “interactive process” with their workers to determine what can be done. But defense lawyers fear that the responsibility is too much for employers. More often than not, the employee tells the employer he or she is suffering from a disability, but in some cases under the new law the employer may need to start the conversation. Douglas Dexter, a partner at O’Melveny & Myers’ San Francisco office, has told his clients to start training programs for managers on when and how to talk to workers about disability. “Most of the cases you see are brought by people who had not engaged in an interactive process,” Dexter said. “The lay person doesn’t recognize that a request for time off initiates the interactive process.” Ultimately, everyone agrees that the courts will decide whether these changes or revisions have significantly altered the landscape of disability discrimination. “You want to encourage businesses and protect people. Like everything, you want to find a balance, and that’s what the courts have to do,” Lazerson said.

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