Metropolitan News-Enterprise


Wednesday, May 3, 2023


Page 1


Court of Appeal:

FEHA Does Not Require Permission for Telecommuting

Opinion Also Says Employer Might Be Liable for Denying Reassignment to Different Supervisor


By a MetNews Staff Writer


Kaiser, after nearly 10 years of permitting an employee to telecommute three days a week so that she could care for her son, with autism, did not breach California law by changing its stance and requiring that all managers show up for work, in person, in Los Angeles, the Court of Appeal for this district has held.

Acting Presiding Justice Brian S. Currey of Div. Four authored the unpublished opinion, filed Monday. It affirms in part and reverses in part Los Angeles Superior Court Judge Holly J. Fujie’s grant of summary judgment in favor of Kaiser in an action brought by Sana Shahin.

While holding that Shahin failed to show a violation of the Fair Employment and Housing Act (“FEHA”) by virtue of ending the arrangement under which she was allowed to remain home in order to care for her disabled son, the court said Fujie should not have summarily decided the plaintiff’s discrimination claim based on not accommodating her with respect to her own disability. The accommodation she sought was to be reassigned to a different supervisor.

Might Be Unfair

“Although Shahin may be right that her new manager’s edict is unfair or unwise, the Legislature has not required an employer to accommodate an employee who has a desire to work from home to assist with care for a child with a disability,” Currey wrote. “Thus, Shahin does not have a viable claim under FEHA, or any other statute she invokes, for Kaiser’s refusal to permit her to continue her telecommuting arrangement, and thus to care for her son.”

He noted agreement with the 2016 dissenting opinion by Justice Elizabeth A. Grimes in Castro-Ramirez v. Dependable Highway Express, Inc. where she said:

“However desirable it might seem for the law to require an employer to accommodate the needs of the disabled associate of a nondisabled employee, the courts are not free to expand the law in this way without any basis in the statutory language or other precedent.”

Currey said Kaiser presented sound business reasons for requiring employees to show up for work in person and Shahin did not show that the proffered reasons were pretextual.

Denial of Reassignment

Fujie ruled for Kaiser on Shahin’s cause of action based on denying her reassignment to a different supervisor based on a Jan. 15, 2015 opinion by the U.S. District Court for the Eastern District of California in Alsup v. U.S. Bancorp. Currey said:

“While unpublished federal district court opinions are citable, they do not constitute binding authority….We decline to follow Alsup.”

He said that “its purported per se rule—that reassigning an employee to a new supervisor can never be a reasonable accommodation—is inconsistent with FEHA,” declaring:

“Shahin’s requested accommodation—reassignment to a new supervisor—is not unreasonable as a matter of law. Kaiser, therefore, had a duty to engage in the interactive process. A reasonable factfinder could conclude it failed to do so.”

The case is Shahin v. Kaiser Foundation Health Plan, B307750.


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