On September 30, 2000, Governor Davis signed into law State Assembly Bill 2222 ("AB 2222"). This new law dramatically expands the scope of the state's existing statutes prohibiting workplace discrimination against disabled persons, and goes beyond the protections provided in the federal Americans with Disabilities Act ("ADA"). It significantly broadens the realm of persons who are to be considered "disabled." It intentionally deviates from recent United States Supreme Court precedent by providing protection to persons whose conditions may be, or are in fact, effectively treated with medication or devices. Most importantly, it creates whole new causes of action under California law. The first is against employers who fail to engage in a timely, good faith, interactive process with employees or applicants known to have physical or mental disabilities or medical conditions after the submission of a reasonable accommodation request. The other concerns employers who make improper medical, psychological, or disability-related inquiries of their applicants or employees. The new law takes effect on January 1, 2001.

A Much Broader Definition of "Disability"

The new law redefines what constitutes a mental or physical disability under the Unruh Civil Rights Act ("the Unruh Act") and the Fair Employment and Housing Act ("the FEHA"). In contrast to federal law, which prohibits discrimination against people with mental or physical conditions that substantially limit one or more major life activities, the Unruh Act and the FEHA will soon proscribe discrimination against anyone whose condition in any way limits one or more major life activities. According to AB 2222, a condition will sufficiently limit a major life activity "if it makes the achievement of the major life activity difficult." It will also be unlawful to discriminate against employees or applicants who the employer regards or treats as having, or having had, a mental condition that makes achievement of a major life activity difficult. In fact, the Legislature has specifically included the following conditions in its new definitions of physical and mental disabilities, without regard to whether the condition is chronic or merely episodic: HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease.

Nor will courts be able to take into account measures used by the employee or applicant to mitigate the effects of his or her condition. This is in sharp contrast to a recent trio of U.S. Supreme Court decisions limiting the scope of the federal ADA to exclude such persons from the ADA's coverage. In short, California employers will no longer be able to consider medications or assistive devices, such as prosthetic limbs, in determining whether the employee or applicant is disabled unless the mitigating measure itself limits a major life activity. The amendments further instruct the courts to broadly construe the term, "major life activity." This term will soon encompass physical and mental activities, such as sleeping, breathing, and learning, as well as social activities and working. Unlike federal law, which defines the major life activity of "working" as a broad class of jobs in a given field, the Unruh Act and the FEHA will define it to mean an actual or perceived limitation that implicates a particular job or a broad range or class of jobs.

Indeed, the Legislature expressly affirmed in AB 2222 the independence of California's proscription against disability discrimination in the workplace from the protections otherwise provided in the ADA. In so doing, it added to this bill language to discourage the courts from further relying on federal courts' interpretation of the formerly analogous ADA in the ongoing development of state disability discrimination law.

New Causes of Action Against California Employers

The Legislature has also added two new causes of action or legal claims that can be pursued against employers in court. California has for some time recognized claims for failing to hire or promote, or for terminating the employment of, a person who is disabled or regarded by the employer as disabled. California has also permitted persons to bring claims against employers who fail to reasonably accommodate the known physical or mental disability of an applicant or employee. Beginning January 1, 2001, however, persons may also assert claims against employers for failing "to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." The Legislature separately defined the term "medical condition" as a genetic or cancer-related condition.

AB 2222 also expressly incorporates into the FEHA some of the federal ADA's existing prohibitions against certain inquiries of job applicants and employees. Employers will be prohibited under the FEHA from making medical, psychological, or disability-related inquiries of their applicants, with the caveat that employers may, however, "inquire into the ability of an applicant to perform job-related functions." The new law permits employers to require medical or psychological examinations or inquiries after extending an employment offer, but prior to the employee's first day of work, so long as the inquiry or examination is job-related, consistent with business necessity, and applied to all new employees in that job classification.

The new law also makes it unlawful under the FEHA to require an employee to submit to a medical or psychological examination or to inquire if the employee has a mental or physical disability or medical condition unless it is job-related and consistent with business necessity. This includes a prohibition against making any inquiries regarding the nature or severity of that condition, unless it is job-related and consistent with business necessity. There is, however, an express exclusion for voluntary examinations and medical histories that are performed as part of an employee health program available at the work site.

How the New Law Will Affect California Employers

California employers would be wise to react quickly to AB 2222. It is also important, now more than ever, to have in place defined procedures for an "interactive" process in which the employer may consider, evaluate, and when necessary suggest, reasonable accommodations that will enable its applicants or employees to perform the essential functions of the job. As more persons in California will soon be entitled to these accommodations, it will become all the more necessary for employers to react promptly and consistently to their disabled applicants' and employees' requests for them. AB 2222 will soon permit the initiation of a legal action against employers who fail to promptly respond in good faith to their disabled applicants' and employees' requests for reasonable accommodation. Thus, California employers should consider training the appropriate personnel on how to respond to requests for work-related accommodations and spending the next several weeks creating and implementing defined "interactive process" procedures for such personnel. Legal counsel should be consulted prior to the implementation of any such procedures to ensure that they conform to the law.

David S. Warner is an associate in Littler Mendelson's San Francisco office. If you would like further information, please contact your Littler attorney at 1.888.Littler, www.littler.com, or email info@littler.com, or Mr. Warner at dwarner@littler.com.