California Adopts New Disability Discrimination Regulations

Regulations proposed by California's Fair Employment and Housing Commission governing disability discrimination have been finalized after public comment and are now in effect. According to the Statement of Purpose, the Commission intends that the definition of "disability" be construed as broadly as allowed by the Fair Employment and Housing Act (FEHA), California's principal anti-discrimination law. The Commission urges that the primary focus in cases brought for alleged violation of the FEHA should be on whether employers have provided reasonable accommodations, whether employers and employees have met their obligations to engage in the "interactive process," and whether discrimination has occurred. The Commission opines that whether the employee meets the definition of disability "should not require extensive analysis." It is true that, in many cases, an employee's status as a disabled person will be obvious. In other cases, unfortunately, the convoluted definitions of "disability" adopted by the Commission in its efforts to define that term to the outer limits of the law will require just the sort of extensive analysis the Commission wishes to avoid - unless employers are to abandon the question of a disability's existence entirely and simply assume that anyone requesting an accommodation is disabled under the law.

The amended regulations are reorganized in an effort to make them more user-friendly. In particular, the definitions are now set out in alphabetical order at the beginning of the regulations. The Commission has also explicitly adopted language and concepts used in the amended Americans with Disabilities Act (ADA), to the extent that those principles are not in conflict with the FEHA. The ADA amendments brought federal law closer to California's broader definitions of "disability," but there are still differences and these are recognized in the regulations. The amended regulations add new material to the definitions of "disability" and elsewhere. As expected, these new provisions pose the greatest likelihood of confusion and resulting litigation.

Applicants and Employees Must Prove They Are "Otherwise Qualified"

Most, but not all, of the regulatory amendments seek to expand the rights of employees. Several of the exceptions are amendments intended to incorporate the California Supreme Court's decision in Green v. State of California.1 That case established that an applicant or employee suing for discrimination has the burden of proving that he or she is an "otherwise qualified individual with a disability" - that the individual is capable of performing essential functions of the job, with or without a reasonable accommodation. The amended regulations add new language under the section "Establishing Disability Discrimination" explicitly stating that the applicant or employee has this burden of proof.2 The amended regulations also add a definition of "qualified individual,"3 and eliminate the previous defense of "inability to perform" in recognition that the decision in the Green case clearly places the burden on an applicant or employee to prove he or she could do the job, with or without reasonable accommodation, when suing for disability discrimination.4

"Assistive Animals" in the Workplace

The amended regulations include expanded provisions that address bringing animals into the workplace as a reasonable accommodation to a disabled individual. These provisions drew significant comment from employers during the public comment period, many seeking more specific statements of the circumstances when employers could be required to allow animals in the workplace. The adopted regulations, however, provide less specific guidance than the...