Thursday, February 20, 2003
High Court Adopts Broader Definition of Disability Under FEHA
By KENNETH OFGANG, Staff Writer/Appellate Courts
A worker is considered disabled for purposes of the Fair Employment and Housing Act when he or she has a physiological condition that “limits a major life activity,” even if that limitation is not “substantial,” the California Supreme Court unanimously ruled yesterday.
The high court agreed with disability advocates and Attorney General Bill Lockyer that a three-year old law adopting that definition clarified, and did not change, existing state law. Two Court of Appeal panels that considered the issue in spring and summer of 2001 reached conflicting conclusions, leading to yesterday’s decision.
The ruling makes it easier to qualify as disabled under FEHA than under the Americans With Disabilities Act, which defines disability as having a condition that “substantially limits one or more major life activities.”
Lockyer issued a statement praising the decision for affirming “that all Californians have always and will continue to receive full protection and access to legal recourse if they are refused jobs, fired or harassed in the workplace based on a physical disability.”
Country Club Sued
The high court reinstated a suit by Francisco Colmenares against his former employer, Braemar Country Club, Inc. Colmenares worked for the country club from 1972 to 1997, when he was fired for “deficiencies in his work performance.”
Colmenares had been a general laborer for 10 years before being promoted to foreman of a maintenance crew, a position he was given a year after injuring his back on the job. He presented evidence of favorable performance reviews and pay raises up until 1995, when he claims a new supervisor began requiring him to perform “heavier work” and two years later caused him to be fired due to his bad back.
Braemar moved for summary judgment on the ground that his back injury did not “substantially” limit his ability to work as a foreman, and thus that he was not disabled for purposes of FEHA. Rejecting the plaintiff’s argument that the limitation need not be “substantial,” the late Los Angeles Superior Court Judge Ronald Cappai ruled that the ADA definition applied to claims under FEHA.
While Colmenares’ appeal was pending, the Legislature adopted the Prudence Kay Poppink Act, named for the late Fair Employment and Housing Commission attorney. The act provides that “under the law of this state,” a person is disabled when his or her condition “limits a major life activity.”
Div. One of this district’s Court of Appeal affirmed, holding that the Poppink Act did not apply retroactively and that the federal definition controlled at the time the plaintiff was terminated. Two months later, however, Div. Seven ruled in Wittkopf v. County of Los Angeles (2001) 90 Cal.App.4th 1205 that the substantial limitation test did not apply under California law, either before or after the passage of the Poppink Act.
Los Angeles County, hoping to have Wittkopf overturned, filed an amicus brief supporting Braemar Country Club.
In concluding that Div. Eight was correct, Justice Joyce L. Kennard noted that the Legislature amended FEHA in 1992, two years after the ADA was enacted, to outlaw discrimination on the basis of “disability.”
Prior to the amendment, the law had proscribed bias based on “physical handicap.” The amendment defined disability as an impairment that “[l]imits an individual’s ability to participate in major life activities” and specified that the definition “shall have the same meaning as the term ‘physical handicap’ as construed in” a California Supreme Court decision rejecting the contention that only a major physical ailment or defect constituted a handicap.
At the same time, Kennard explained, the Legislature adopted the ADA definition for purposes of other state laws, such as those barring discrimination in licensing, in public accommodations, and in the provision of state-funded services. The intent, she said, was that Californians enjoy in each instance the protections of the ADA or of prior state law, whichever afforded greater rights to the disabled.
Thus, the justice said, the Legislature chose to apply a broader definition in employment cases than in other situations, contrary to the rulings of the lower courts in Colmenares’ case.
Kennard distinguished Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, which held that a health food store didn’t violate FEHA by denying a job to a woman who claimed the only reason she wasn’t hired was that she was overweight.
Justice Armand Arabian, who has since retired, did at one point in that opinion describe a disability as a “substantially limiting” condition, Kennard acknowledged. But the phrase was dicta, she explained, because the holding of the case was that obesity was not a “physiological condition” and thus not a disability under FEHA no matter how much it limited a person’s life activities.
Besides, Kennard noted, Arabian used the term “limits,” not modified by “substantially,” in three other places in the opinion.
The case is Colmenares v. Braemar Country Club, Inc., 03 S.O.S. 881.
Copyright 2003, Metropolitan News Company