From California Labor and Employment Law Review, Vol. 28, No. 2, March 2014
A Rose Is a Rose Is Not Retaliation: Why Requesting an Accommodation Should Not Be Considered "Protected Activity"
By Matthew R. Jedreski
Section 12940(h) of California's Fair Employment and Housing Act (FEHA) prohibits employers from retaliating against an employee who "has opposed any practices[,] . . . filed a complaint, testified, or assisted in any proceeding" under FEHA.1 An employee's simple request for a reasonable accommodation is neither an opposition, nor complaint, nor participation in a proceeding under FEHA. A request for accommodation thus should not serve as "protected activity" supporting a retaliation claim under Cal. Gov't Code § 12940(h)--yet courts routinely find that it does.
Of course, if an employer fails to interact with the employee, refuses to implement a reasonable accommodation request, or takes adverse action against an employee for requesting an accommodation, the employee might have any number of viable claims: for failure to accommodate, failure to engage in the interactive process, disability discrimination, wrongful termination, etc. But a claim for FEHA retaliation should not lie if the claim relies solely on an accommodation request to satisfy the "protected activity" requirement.
This article summarizes California law regarding Cal. Gov't Code § 12940(h) and argues why a request for accommodation is not "protected activity" and therefore should not give rise to a claim for retaliation under FEHA.
The Problem for Employers
Over the last ten years, more than a dozen California and federal court opinions have held that a plaintiff's request for an accommodation is a "protected activity" that can serve as an element of a retaliation claim under FEHA. None of those opinions include any analysis as to why requesting an accommodation could be, by itself, a protected activity, but instead appear to accept that idea as a given. For example:
Many federal courts, interpreting nearly identical language in the antiretaliation provision of the Americans with Disabilities Act (ADA),6 have made the same assumption, again without in-depth analysis.7
Why are courts classifying requests for accommodation as "protected activities" when the antiretaliation provision of the FEHA (and ADA) clearly requires some form of actual opposition activity? A few factors may contribute.
First, a FEHA retaliation claim must include the following elements: (1) the employee engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link existed between the protected activity and the employer's action.8 Courts sometimes explain that the shorthand "protected activity" in the anti-retaliation context specifically refers to conduct protected under Cal. Gov't Code § 12940(h)--in other words, some form of opposition to, or complaint about, illegal practices under FEHA.9 But many courts do not bother with this crucial nuance.10
This otherwise helpful formula may have a collateral muddying effect, as FEHA does protect an employee's right to reasonable accommodations. Employers are obligated to engage in a timely, good-faith interactive process to determine and implement reasonable accommodations.11 If an employer discharges 12 an employee because that employee requested a reasonable accommodation, the employer may be subject to disability discrimination liability.13 Thus, in a general sense, requesting an accommodation is indeed an activity that is protected under the FEHA.
Second, if an employer discharges an employee because the employee requested an accommodation, that is conduct that sure looks and feels like "retaliation" under the plain meaning of the word.14 That logic may have led the EEOC to assert (errantly, in my view) that a "request for reasonable accommodation of a disability constitutes protected activity under" the ADA's anti-retaliation provision, even though "a person making such a request might not literally 'oppose' discrimination or 'participate' in the administrative or judicial complaint process."15 The EEOC explains tautologically that this is so because employees generally are "protected against retaliation for making the request."16
Finally, a plaintiff-employee who has been discharged because she requested a reasonable accommodation often brings a host of FEHA claims: discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, failure to prevent discrimination, etc. It is also often the case that an employee both requested an accommodation and lodged some sort of formal or informal complaint with the employer relating to the employee's FEHA rights. Under those circumstances, litigants on both sides are less likely to focus on the semantics of the "protected activity" element when doing so will have little (if any) concrete effect on the defendant's ultimate liability. Because it often makes no practical difference, it is possible that fewer parties and courts have an incentive to scrutinize the "protected activity" element to begin with.17
Fortunately for California employers, there is law supporting the proposition that requesting a reasonable accommodation is not "protected activity" for the purposes of a FEHA retaliation claim.
By far, the best case for employers is Kelley v. Corrections Corp. of Am.,18 in which a clerical employee at a prison brought FEHA claims for disability discrimination, wrongful termination, failure to accommodate, failure to engage in the interactive process, and retaliation. Plaintiff 's retaliation theory was that her employer discharged her because she requested accommodation of her carpal tunnel syndrome. Although the district court denied the employer's motion to dismiss the wrongful termination, failure to accommodate, and failure to engage claims, it dismissed the retaliation claim.
Quoting and emphasizing the plain language of Cal. Gov't Code § 12940(h), the court stated that simply requesting accommodation is not "protected activity," which by definition must "involve some level of opposition to the employer's actions based on the employee's reasonable belief that some act or practice of the employer is unlawful."19 In other words, not only must the employee be in opposition to some practice, but the employer must also be aware of that opposition, because without knowledge, the employer could not, as a practical matter, engage in retaliatory behavior.20
The Kelley court went further, pointing out that the only case relied on by the plaintiff for the proposition that requesting accommodation is protected activity was Nadaf-Rahrov v. Neiman Marcus Group, Inc.21 But in that case, as explained above, the appellate court "simply assumed that the plaintiff had set forth a prima facie case for retaliation" and did not actually analyze the issue.22 The Kelley court went on to caution that an interpretation of "protected activity" that includes simply requesting an accommodation "would significantly blur and perhaps obliterate the distinction between an action for failure to accommodate or engage in the interactive process and retaliation."23 In this vein, the Kelley plaintiff's retaliation claim was simply a restatement of her failure to accommodate and engage claims.24
As far as published opinions are concerned, Kelley seems a voice crying in the wilderness. The sheer quantity of support for the opposite position-- that requesting an accommodation is "protected activity"--presents a challenge for employers, even if these cases lack any meaningful analysis. Indeed, there appear to be only five other California opinions, all unpublished, that have addressed the issue and concurred with the reasoning expressed in Kelley and in this article. (Although these cases cannot be cited, they might provide employers' counsel with some logical arguments to include in their briefing.)25 As one district court recently lamented: "[a]lthough the Court finds the reasoning and statutory analysis of Kelley to be the more persuasive, the Court is bound by the Ninth Circuit precedent of Coons [v. Sec'y of U.S. Dep't of Treasury]. . . ."26 In Coons, an ADA case, the Ninth Circuit concluded (again, without analysis) that the plaintiff "was engaged in a protected activity when he requested that the IRS make reasonable accommodations for his alleged disability."27
Case law outside the Ninth Circuit may provide further support in the parallel Title VII context. For example, in Payne v. Salazar,28 a religious accommodation case, the district court for the District of Columbia addressed the issue headon, including the EEOC Compliance Manual's inclusion of "requesting an accommodation" under its definition of "protected activity":
The Payne court then held that requesting an accommodation is not a protected activity under Title VII. Nonetheless, it cited several other federal authorities (including some from the same district) that reached the opposite conclusion.30
Several other sources buttress the plain reading of Cal. Gov't Code § 12940(h) and the appealing logic articulated in Kelley.
Section 11021 of title 2 (on employment discrimination) of the California Code of Regulations defines "retaliation," including for purposes of FEHA.31 The definition includes numerous examples of what "opposition" to forbidden practices and "participation" in proceedings may include. Not only is simply "requesting accommodations" absent from the list, but the cited examples demonstrate the notion that some true opposition to illegal practices is required. This paves the road for the Latin-heavy arguments of inclusio unius est exclusio alterius32 and ejusdem generis:33 that the listed examples preclude expanding the retaliation definition to include "requesting an accommodation," because it is neither listed nor bears any relation to the conduct that is listed.
Further support can be found by comparison to the anti-retaliation provision of the California Family Rights Act (CFRA). The CFRA prohibits an employer from retaliating against an employee because of "an individual's exercise of the right to family care and medical leave. . . ."34 The legislature's intent here is unmistakable, throwing shade on the notion that the legislature would resort to implying a similar protection for requesting an accommodation (including medical leave) under the FEHA's antiretaliation provision. At least one court appears to have recognized the distinction.35
Finally, there is the notion mentioned earlier that employees who request accommodations are otherwise well-protected by the FEHA. Although this may be a Pyrrhic argument for employers, it provides a valid reason for courts to use a narrower (and more precise) interpretation of section 12940(h), while still promoting and enforcing the legislature's broad goal to protect employees. In any event, he who dares not grasp the thorn should never crave the rose.36
An employee's request for an accommodation should not constitute "protected activity" for the purposes of a FEHA retaliation claim. Employers should consider pressing this argument where appropriate. A wellcrafted argument might persuade a court to conduct an in-depth analysis of this question, which might one day provide employers and employment law practitioners with greater clarity on this issue.
6. The ADA's anti-retaliation provision: "No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). Back
7. See, e.g., Wright v. CompUSA, Inc., 352 F.3d 472, 477-78 (1st Cir. 2003) ("This court has previously assumed, without deciding, that simply requesting an accommodation, without filing a formal charge or engaging in other specific behaviors listed in § 12203(a), is nonetheless behavior protected from an employer's retaliation….We now hold that requesting an accommodation is protected activity for the purposes of § 12203(a)"); Heisler v. Metro. Council, 339 F.3d 622, 632 (8th Cir. 2003); Selenke v. Medical Imaging, 248 F.3d 1249, 1264-65 (10th Cir. 2001). Back
9. See, e.g., Mamou v. Trendwest Resorts, Inc., 165 Cal. App. 4th 686, 713 (2008) (first element of FEHA retaliation is plaintiff 's "engagement in a protected activity, i.e., 'oppos[ing] any practices forbidden under this part'"). Back
10. See, e.g., Nadaf-Rahrov, 166 Cal. App. 4th at 989 (first element of retaliation claim is that plaintiff "engaged in a protected activity"); Edgerly v. City of Oakland, 211 Cal. App. 4th 1191, 1205 (2012), as modified Dec. 13, 2012 (same). Back
13. See, e.g., Solomon v. Vilsack, 845 F. Supp. 2d 61, 66 (D.D.C. 2012) ("The ADA defines the term 'discriminate' to include 'not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability . . . unless . . . the accommodation would impose an undue hardship on the operation of the business of such covered entity.'") (citing 42 U.S.C. § 12112(b) (5)(A)). Back
14. "Retaliate" means "to repay (as an injury) in kind," "to return like for like," or "to get revenge." Merriam- Webster Online Dictionary, http:// www.merriam-webster.com (29 July 2013). The word's root is the Latin noun talea, meaning "stick" or "cutting." The word talea evolved to mean a stick marked with notches to show payment (from which the word "tally" also originated), and the word retaliate arrived in the Middle Ages meaning "payment in kind" (in both the good and bad sense). See "Retaliation," Online Etymology Dictionary, http://www.etymonline.com/index. php?term=retaliation&allowed_in_ frame=0 (Feb. 10, 2014). Back
17. See, e.g., Velente-Hook v. E. Plumas Health Care, 368 F. Supp. 2d 1084, 1101 (E.D. Cal. 2005), where the employer did not dispute that requesting accommodation was a protected activity, possibly because the plaintiff had also complained to the employer about not accommodating her disability. Back
20. Id., citing Yanowitz, 36 Cal. 4th at 1046 ("Standing alone, an employee's unarticulated belief that an employer is engaging in discrimination will not suffice to establish protected conduct for the purposes of establishing a prima facie case of retaliation, where there is no evidence the employer knew that the employee's opposition was based upon a reasonable belief that the employer was engaging in discrimination."). Back
25. See Rubadeau v. M.A. Mortenson Co., 1:13-CV-339 AWI JLT, 2013 U.S. Dist. LEXIS 93928, 2013 WL 3356883 (E.D. Cal. July 3, 2013) ("Asking the employer for reasonable accommodation and to engage in the interactive process is distinct from making complaints to the employer about failing to provide reasonable accommodation and failing to engage in the interactive process. Further, FEHA provides for separate causes of action when an employer fails to make reasonable accommodation and fails to engage in the interactive process."); Alcala v. Best Buy Stores, LP, EDCV 11-00798- JVS, 2012 U.S. Dist. LEXIS 181892, 2012 WL 6138332 (C.D. Cal. Nov. 7, 2012) (plaintiff 's request for accommodation "is not a FEHAprotected activity and cannot be the basis for" a retaliation claim); Sipple v. Crossmark, Inc., 2:10-CV-00570- MCE, 2012 U.S. Dist. LEXIS 94584, 2012 WL 2798791 (E.D. Cal. July 9, 2012), appeal dismissed Sept. 28, 2012 (noting that FEHA's anti-retaliation provision is to protect and encourage complaints about discriminatory practices, hence "asking for dress code accommodations" cannot constitute "sufficient notice to the employer that the employer is being accused of discrimination"); Ayzenshteyn v. Rexam Beverage Can Co., B196458, 2009 Cal. App. Unpub. LEXIS 93, 2009 WL 27188 (Cal. Ct. App. Jan. 6, 2009) (retaliation claim duplicative of failure to accommodate and constructive discharge claims; also, it is "doubtful that requesting an accommodation constitutes 'oppos[ing][a] practic[e] forbidden under [FEHA]' for which 'protected activity' is shorthand"); Hernandez v. Target Corp., B195625, 2008 Cal. App. Unpub. LEXIS 1329 (Cal. Ct. App. Feb. 19, 2008) ("At best, plaintiff 's evidence shows that she presented Target with doctors' notes about her work restrictions and written requests for accommodations. . . . None of these writings, however, rise to the level of 'opposing' a prohibited practice under the FEHA, such as disability discrimination."). Back
30. It is worth noting that the plaintiff in Payne had requested religious accommodation, although it is unclear whether this affected the court's logic that Title VII's antiretaliation provision requires opposition activity. Back
31. Cal. Code Regs., tit. 2, § 11021; Steele v. Youthful Offender Parole Bd., 162 Cal. App. 4th 1241, 1252 (2008) (applying § 11021's predecessor § 7287.8 to define "protected activity" for purposes of FEHA retaliation claims). Back
35. See Betson v. Rite Aid Corp., B235747, 2012 Cal. App. Unpub. LEXIS 8580 (Cal. Ct. App. Nov. 27, 2012), reh'g denied Dec. 19, 2012, review denied Feb. 27, 2013 (granting summary adjudication for FEHA retaliation but denying it for CFRA retaliation, both of which were based on employee's taking of medical leave as an accommodation). Back