California Governor Signs Bill Making Request for Reasonable Accommodation Grounds for Retaliation Claim Under FEHA

The Courts of Appeal have held that an employee's requesting reasonable accommodation is not a "protected activity" for which a retaliation claim will lie under the Fair Employment and Housing Act. (See, for example, Rope v. Auto-Chlor, discussed here).  That is because protected activity was (previously) defined as "opposing" some unlawful practice, or participation in an investigation or proceeding involving FEHA-based claims.  A request for accommodation is not "opposing" an unlawful practice, so it did not fall within the previous definition.

Not to worry. The Legislature just added to the list of protected activities an employee's request for accommodation, whether or not it is granted.  So, when an employer denies reasonable accommodation, that was and is separately actionable. Now, the employee likely will assert a retaliation claim as well, claiming that the denial was in retaliation for the employee's making the request.  

May the employer lawfully deny an accommodation because it's not "reasonable" or because the employee is not a "qualified individual," but still be liable for retaliation? We'll see how the courts react.

The new law is AB 987, text here.