New California Law Relaxes Requirements For Disability Discrimination Claims

Disabled job applicants and employees may pursue claims for disability discrimination and for failure to reasonably accommodate their disabilities under the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA). California Assembly Bill (AB) 2222, which Governor Davis signed on September 30, 2000 and which takes effect on January 1, 2001, makes it substantially easier to pursue such claims under FEHA than under the ADA. Key changes created by AB 2222 are addressed below.

Mitigating Measures

In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the United States Supreme Court ruled that, under the federal ADA, the determination of whether an individual is "disabled" and therefore entitled to pursue a cause of action, should be made after taking account of measures, such as eyeglasses and contact lenses, that mitigate the person's impairment. That decision was a major defeat for the federal Equal Employment Opportunity Commission (EEOC), which advocated the opposite position.

AB 2222 explicitly rejects that holding of Sutton with regard to the California FEHA. AB 2222 states that the issue of whether a person has a mental or physical disability under FEHA "shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity." Consequently, a seriously myopic person, whose vision is 20-20 with contact lenses, is nevertheless "disabled" for purposes of FEHA but not under the ADA.

"Limits" Versus "Substantially Limits" A Major Life Activity

The ADA defines a "disability" as including "a physical or mental impairment that substantially limits one or more major life activities." 42 U.S.C. 12102(2)(A). Although the word "substantially" does not appear in the definition of disability under FEHA, one district of the California Court of Appeal has held that the state language should be interpreted in the same way as the federal requirement. Several other districts have disagreed with respect to mental impairments under FEHA.

AB 2222 resolves the dispute by declaring that "the definitions of 'physical disability' and 'mental disability' under the laws of this state require a 'limitation' upon a major life activity but do not require as does the Americans with Disabilities Act of 1990, a 'substantial limitation.' This distinction is intended to result in broader coverage...