Establishing Disability: California v. Federal Law

A few years after the passage of the Americans with Disabilities Act (ADA), I attended a plaintiffs' side employment conference attended by practitioners from most of the fifty states. Although the federal District Courts and Courts of Appeal had already hammered plaintiffs on a number of different issues, many in attendance still believed that the ADA created a watershed of opportunity for the disabled community, especially for those who had workers' compensation cases. Each workers' compensation case was perceived to be a money making ADA case1.

While some significant victories have been secured under the ADA, employment rights and opportunities for persons with actual or perceived disabilities have on the whole fared very poorly under the ADA. A well known study conducted by the American Bar Association, for example, published in 1998 found employers prevailed 92% of the time an ADA case was decided on a motion to dismiss or on summary judgment. 22 Mental and Physical Disability, L. Rep. 403,404 (May-June 1998); see also: Colker, R., "The Americans With Disabilities Act: A Windfall for Defendants" 34 Harv. C.R.-C.L.L. Rev. 99 (1999)2 The plight of the ADA plaintiff is highlighted when one evaluates success rates in employment discrimination cases generally in the federal courts. A July 16, 2001 article in the Wall Street Journal stated the results of a nine year, 266 case study of employment discrimination suits. The survey results reflected that in those cases where the plaintiff prevailed in the district court, the employer obtained a reversal 56% of the time in the Courts of Appeals, as compared to a 5.8% reversal rate when the plaintiff was the appellant. Together, these studies suggest that plaintiffs seeking redress under the ADA stand less than a 1 and 10 chance of success at the trial court level and, in the unlikely event s/he is successful, the plaintiff faces a significant likelihood of reversal on appeal.

Plaintiffs' dismal success rate under the ADA is due in no small part to the ADA's definition of disability coupled with the openly hostile anti-employee approach taken by the courts. Under the ADA, a person is disabled only if he or she can prove he or she has (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) has been regarded as having such an impairment. 42 USC §12102(2). The EEOC regulations and case law have interpreted the phrase "substantial limitation" in the major life activity of working3 to require a plaintiff to prove he is unable to work in either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. The kicker is that under the ADA, an individual's inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 CFR §1630.2(j); Sutton, supra, 527 U.S. at 491-494; Real v. City of Compton (1999) 73 Cal.App.4th 1407, 1416-1522.

In no other area of employment discrimination is the employer able to look the plaintiff in the eye and tell her she's fired/not hired because of her suspect classification and not be held liable. Under the ADA, if another employer across the street treats its employees fairly and in a non-discriminatory manner and would not have rejected plaintiff because of her disability, plaintiff will most likely be unable to prove her claim because she will not be found to be disabled. In the area of disability discrimination under federal law, such conduct is generally not illegal because plaintiff cannot prove she has a substantial impairment as that term is defined under the ADA4.

Luckily, the California work force is able to rely on the older, broader protections afforded them under state law. California's prohibition against physical disability discrimination was declared to be a suspect classification by the Legislature in 1973. Since 1973, the Legislature has never defined physical disability to require a plaintiff to prove that his medical condition constituted a "substantial impairment" of a major life activity. Rather, California law has always defined physical disability in terms of merely requiring a plaintiff to prove that his impairment "limited" his ability to engage in major life activities.

Despite this glaring distinction between the federal and state statutory language defining disability, California's Courts of Appeal have for the most part wrongly borrowed from and relied upon federal law to interpret a dissimilar California statute. This misapplication of law has led to wrong results, depriving disabled workers of rights and entitlements which they justly deserve.

It is well settled that when interpreting a California anti-discrimination statute, California courts can and should look to federal law when interpreting similar statutes. Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 216; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 496. It is axiomatic therefore that when the federal authority referred to is dissimilar, reliance on federal law is inappropriate. Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 74-75. It is also well settled that when interpreting a statute, courts are to follow the plain meaning of the actual words used by the Legislature, Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1046-1047. They are not empowered to insert into a statute language which the legislature has never included, Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1089, nor render superfluous the actual words used by the legislature, Shoemaker v. Myers (1990) 52 Cal.3d 1, 22. Under these precepts, the courts are proscribed from inserting into California's disability discrimination statutes the phrase "substantial impairment" and the implications resulting therefrom. The effects of requiring a plaintiff to prove the existence of a substantial impairment are often devastating.

For example, in Diffey v. Riverside County Sheriff's Dept. (2000) 84 Cal.App.4th 1031, the jury returned a verdict of $307,000 on Mr. Diffey's ADA and FEHA claims. Mr. Diffey asserted that the County of Riverside had "regarded" him as disabled when it refused to hire him because he had a severe color vision deficit and extensive color confusion (he couldn't see the color red, that is, until the Court issued its decision). After trial, the trial court granted the County's motion for new trial and directed verdict. In upholding the decisions of the trial court, the Fourth District, relying on Sutton, supra, held

"[A] valid job requirement (the ability to see the color red) for a deputy sheriff does not translate into disability discrimination even if a substantial number of similar employers adopt it. A person is not substantially limited in the major life activity of working merely because he is prevented from working as a police officer. (citations omitted) Even if Diffey is prohibited from working as a deputy sheriff throughout California, it does not mean that the County regarded him as disabled." [Emphasis added.]
Diffey, 84 Cal.App.4th at 1039-1040.

Under Diffey, an employee/applicant asserting a claim under FEHA can be denied a job because of his disability not only in his chosen profession, i.e. a County sheriff, but also can be precluded from the entire field of law enforcement throughout the state yet still not be entitled to avail himself of the statute because he does not have a disability covered by the statute, that is, he is not "substantially limited." This simply cannot and is not what our Legislature intended.
In 1973, twenty-seven years before Congress promulgated the ADA, the California Legislature added to its list of protected or suspect classifications "physical handicap." Physical handicap was then defined within the Fair Employment Practices Act, California Labor Code §§1410-1433 at California Labor Code §1420 (the predecessor to California Government Code §12940) as:

"Physical handicap includes impairment of sight, hearing, or speech, or impairment of physical ability because of amputation or loss of function or coordination, or any other health impairment which requires special education or related services."
(Stats. 1973, ch. 1189, §3 p. 2499)

According to our Supreme Court, by its plain terms, the Legislature created three categories of physical handicap when it promulgated California Labor Code §1420: (1) physical impairments creating sensory deprivations such as sight, hearing, and speech; (2) a general, non-specific grouping of impairments triggered by special educational needs; and (3) impairments affecting motor coordination such as amputation, loss of coordination, or loss of function. Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1056-1057.

In 1980, ten years before Congress passed the ADA, California's Legislature once again amended its anti-discrimination statutes, repealing the Fair Employment Practices Act and reenacting it as part of the Fair Employment and Housing Act, codified at California Government Code §§12900 et seq. (FEHA). Despite the recodification, the definition of physical handicap remained unchanged. Moreover, the right to be free of discrimination because of one's physical handicap/disability remained a civil right. As the Legislature declared,

"It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment with discrimination or abridgment on account of ... physical handicap."
California Government Code §12920.

As a civil right, persons with disabilities are entitled to receive the highest level of protection, California Government Code §12921; City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1156-1157, and to have the statute interpreted liberally with an eye towards achieving its intended purpose, California Government Code §12940(a); Moorpark, supra, 18 Cal.4th at 1157.

In 1992, the Legislature again amended its disability discrimination statutes, enacting sweeping changes to FEHA to ensure that California law equalled or exceeded the federal law codified within the ADA. Under the 1992 amendments, "physical handicap" was replaced by the term "physical disability," liability would now be predicated on either an actual disability or where the employer misperceived or wrongly regarded the plaintiff as being disabled, and for the first time discrimination on the basis of a mental disability was made a suspect classification.

In promulgating the 1992 Amendments, our Supreme Court concluded that by specifically including within FEHA, at California Government Code §12926(k)(4) the requirement that disability was to be given the same broad or liberal interpretation the Supreme Court had proclaimed in American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603 (namely, that a physical disability is one where an individual's impairment makes achievement unusually difficult), the Legislature clearly intended for the meaning and interpretation of disability given it by the courts prior to 1992 to apply to conduct at issue after the effective date of the 1992 Amendments. Cassista, supra, 5 Cal.4th at 1057.

Furthermore, because the 1992 Amendments were passed in part to ensure that California law equalled or exceeded federal law, the Legislature inserted into FEHA at California Government Code §12926(l) the mandate that whenever the definition of disability under FEHA would provide more expansive coverage than the ADA, FEHA and not the ADA would govern. This provision reflects a conscious decision by the Legislature to ensure that FEHA's provisions were not supplanted by a less protective ADA. Moreover, such a provision is consistent with the ADA itself. See 42 USC §12201(b)5.

In short, since its legislative inception, FEHA has never used the phrase "substantial limitation" to define disability. While a number of decisions from California's Courts of Appeal have acknowledged this simple but critical distinction between the ADA and FEHA as to the definition of mental disability, see: Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709; Swenson v. County of Los Angeles (1999) 75 Cal.App.4th 889 (depublished); and Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, no case had reached that conclusion as to a physical disability until July of this year, when Division Seven of the Second Appellate District issued its decision in Wittkopf v. County of Los Angeles (7/24/01) 90 Cal.App.4th 1205, 109 Cal.Rptr.2d 543.

In Wittkopf, plaintiff, a 28 year employee with a stellar performance record, became "legally blind" in one eye. Although he was permitted to and did return to work after cataract surgery and thereafter performed admirably, the County nevertheless removed him from employment following its receipt of a defense medical report in Mr. Wittkopf's workers' compensation case. Believing Mr. Wittkopf's vision problem might cause injury to himself and others and thereby expose the County to liability, the County fired Mr. Wittkopf. Mr. Wittkopf's subsequent lawsuit was predicated solely on a violation of FEHA. The County moved for summary judgment, which the Court granted on the grounds that Mr. Wittkopf was unable to prove he was "substantially limited." In reversing, Division Seven of the Second District held,

"As written, §12926 omitted any mention of the 'substantial' limitation on a person's ability to participate in major life activities required by federal law. In contrast to the language in FEHA, an individual is 'disabled' under the ADA's definition only if he or she has a 'physical or mental impairment that substantially limits one or more of the major life activities of such an individual,' or has a record of or is regarded as having such an impairment. (42 U.S.C. §12102(2)(A)-(C), italics added.)
Notwithstanding the significant gap in the language of these two statutes, a number of courts have mistakenly equated FEHA's standard with the more exacting definition in the ADA. ...
'[T]he touchstone of a qualifying ... disability is an actual or perceived physiological disorder which affects a major body system and limits the individual's ability to participate in one or more major life activities.' (Id. at p. 1061, emphasis added.) Based on the clear language in FEHA, and the holding in Cassista, we conclude that, even before its recent amendment, the statutory definition of physical disability under FEHA did not require a plaintiff to demonstrate more than that his physiological impairment limits his ability to participate in a major life activity." [Emphasis in original and added.]
90 Cal.App.4th at 549-550

Wittkopf is significant for at least two reasons. First, it holds that the recently enacted Prudence Kay Poppink Act, aka AB 2222 (the Poppink Act), is retroactive and second, the Poppink Act is retroactive because it represents a clarification of existing law, that is it does not reflect a change in the law. Wittkopf confirms that an employee under FEHA has never been required to prove the existence of a "substantial limitation" in order to establish the existence of a disability. Counsel should be mindful, however, of Division One's decision in Colmenares v. Braemar Country Club, Inc., (2001) (Second District) 89 Cal.App.4th 7786 (pet. for rev. filed 7/6/01), which reached a conclusion completely contrary to that issued by Division Seven in Wittkopf.

While pre-Poppink Act claims will most likely continue to foster battles in the trial, appellate, and our Supreme Court on, inter alia, the definition of disability, the Poppink Act should send a clear message to the trial and appellate courts that persons seeking relief under FEHA are not required to meet the federal standards unless said standards provide greater relief than FEHA affords.

1 - The defense bar was advising its clients that the ADA would create absolute havoc and a Pandora's box of liability for employers, a scenario reconveyed by the defense bar as a result of the recent enactment of the Prudence K. Poppink Act, AB 2222.
2 - In August of this year, the Houston Chronicle published the results of a study which found that even the EEOC is rarely able to win benefits for disabled workers filing discrimination claims. The study found that only 12% of claimants receive any monetary or job adjustment benefits.
3 - In pursuing an ADA claim, one should rely on the major life activity of working only if the plaintiff cannot first establish a substantial limitation in a major life activity other than working. Sutton v. United Airlines, Inc. (1999) 527 U.S. 471, 492. There may in fact be some conceptual difficulty in defining major life activities to include work according to the Supreme Court. Bragdon v. Abbott (1998) 524 U.S. 624, 118 S.Ct. 2196, 2205 [considering but not concluding that procreation is a major life activity]; Williams v. Toyota Mfg. Kentucky Inc. (6th Cir. 2000) 224 F.3d 840, 843-844, cert. granted 4/16/01, 121 S.Ct. 1600 [inability to perform manual tasks constitutes a substantial impairment of a major life activity]. Please note the Bush Administration recently filed an amicus brief in support of Toyota.
4 - Recently, the Ninth Circuit in Johnson v. Paradise Valley Unified School District (2001) 251 F.3d 1222, addressed the absurdity of requiring a plaintiff to prove whether other employers may have "regarded" the plaintiff as incapable of performing the job at issue. As the court stated, "[T]o recognize 'working' as a major life activity raises various legal conundra. Sutton 527 U.S. at 492. The mind-bending problems are exacerbated where, as here, the claim is not that the plaintiff is disabled from working, but that she is wrongly regarded as disabled from working. Does that mean that the employer must subjectively believe that the plaintiff cannot work at a class or broad range of jobs? Why should an employer ordinarily form any view on whether an employee is disabled from performing jobs for other employers? Are we, therefore, to concern ourselves only with the question of if the employee was impaired as the employee thought, she would, as an objective manner, be unable to perform a class or broad range of jobs? ... [We are not aware of any] case of this Court resolv[ing] these confounding issues." [Emphasis in original; explanation added.] Id. at 1226 at f.n. 3.
5 - 42 USC §12201(b) provides: "Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter. ..."
6 - Interestingly, the plaintiffs in Colmenares and Wittkopf were represented by the same counsel, who filed almost identical briefs/arguments with different Divisions within the same District, reaching contrary results.