DISABILITY—New Disability Definition Has Business Wary

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If an employee wears glasses, has high blood pressure or was once diagnosed with a life-threatening disease, is he or she disabled?

Based on recent amendments to California’s disability legislation, the answer could be yes. The amendments to a state bill, which became effective at the beginning of this year, are blurring the lines that traditionally define whether an employee is disabled. The amendments open up broad interpretations that employees’ attorneys say could bring more lawsuits against employers and more settlements, likely in the employees’ favor.

“It’s creating a higher burden for California employers,” said Jim Kuns, senior consultant at the Employers Group, a Los Angeles-based association representing 5,000 employers in California. “If they’re making a decision of whether to move to another state, this is one more thing to consider.”

Century City Attorney Lee Feldman said he expects the 80 percent of disability discrimination cases that currently go to summary judgment to be reduced to about 20 percent as a result of the new legislation. That will bring more cases to settlement and fewer thrown out. Feldman represents employees in disability cases.

“Yes, it will result in more lawsuits, and it will increase the cost of doing business because they’re going to be litigating cases they otherwise might have thrown out,” he said. “But passing the Civil Rights Act of 1964 had the same result. Society has to make a choice.”

Already, California’s reputation is less than business-friendly. Just last week, a $90 million judgment against Farmer’s Insurance Exchange required the Los Angeles-based company to pay overtime wages to claims adjusters, who were previously considered white-collar occupations that were exempt from overtime pay.

Two cases, both in Los Angeles, have gone through appeal, contesting whether an employer is subject to the state’s new disability legislation even if the action in question took place before the new law was passed. One case ended with a statement that the old and new state laws were retroactive; the other claimed the opposite. The new legislation also has brought to light cases that previously may not have been at issue.

In a case against the Los Angeles Police Department, a new recruit was demoted to desk duty after his hearing impairment became a problem. He was later fired. He claimed he was discriminated against, and the city claimed that a police officer needed to have perfect hearing.

Although the plaintiff didn’t win, Kuns said the case would not have even gotten to appeal without the new state amendments.

Unlike the Americans with Disabilities Act, the federal law that prohibits discriminating against people with disabilities, the California state law opens up the definition of a disability to include areas that make an employee’s work difficult, but not necessarily limiting. That means an employee does not have to be missing a limb or blind to be considered disabled, as in the more restrictive ADA law. He or she may have high blood pressure, bad eyesight or be overweight to be considered disabled.

Or, in an extreme example, employees may simply not get along with their boss or co-workers.

“Is everyone with glasses going to demand a bigger monitor or computer because maybe they forgot their glasses that day? No. Most likely there will be situations where there is a clash between managers and employees, and claims will be brought saying [that clash] is the result of a disabling situation,” said Diane Kimberlin, partner at Littler Mendelson PC in Los Angeles.

But the broadened definitions also may result in increased costs and time for employers, who will be forced to find accommodations such as additional leave time, reshuffling of employees, temporary help or a bigger computer screen for employees, Kuns said.

In addition, the amendments do not consider “mitigating measures,” such as eyeglasses or medication, in determining whether someone is disabled. Even if someone takes corrective measures on their own to accommodate their disability, the employer still may be required to provide a work place that accommodates their disability anyway.

Proponents said that by broadening the definition of disabled, employees have more rights to sue employers who, for no other reason than because of their disability, fire them.

The ADA soon may follow on the heels of California’s legislation. In April the U.S. Supreme Court agreed to hear two cases that will determine whether a repetitive stress injury can be considered a disability.

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