California Disability Law May Cover Condition Outside Scope of Federal Law

A trial court should not have dismissed a claim filed by a teacher against a school district alleging that the district failed to accommodate her "electromagnetic hypersensitivity," in violation of California's Fair Employment and Housing Act (FEHA), a California appellate court ruled.

Several courts have ruled that electromagnetic hypersensitivity is not a recognized disability under the federal Americans with Disabilities Act (ADA), but the condition may still be covered by FEHA, the court held.

FEHA's protections for workers with disabilities are independent of those under the ADA, and while the federal act provides a floor of protection, California law affords additional protections, the court said.  

The teacher had worked for the school district since 1989. In 2015, the district installed an updated Wi-Fi system at the school where the teacher worked. She soon began to experience headaches and nausea and believed the electromagnetic frequency of the new wireless system was the cause. She requested various accommodations from the school district, but ultimately sued, alleging the district failed to accommodate her condition, among other claims.

The trial court dismissed her claims before trial, relying on two cases that had held that electromagnetic hypersensitivity was not a disability protected by the ADA. The teacher appealed.

FEHA Protections Broader Than Under ADA

The trial court's reliance on ADA cases was misplaced because FEHA's protections against disability discrimination are independent of those under the ADA, according to the appeals court. Although the federal act provides a floor of protection, California law provides broader protection than the ADA.

FEHA states that a "physical disability" includes any physiological disease, disorder or condition that:

• Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine.
• Limits a major life activity.

Under California law, a condition limits a major life activity if it makes achieving the major life activity difficult. "Major life activities" include physical, mental and social activities, as well as working.

The teacher claimed that she could not work because she experienced chronic pain, headaches, nausea, itching, burning sensations on her skin, ear issues, shortness of breath, inflammation, heart palpitations, respiratory complications, foggy headedness and fatigue, all of which she claimed were symptoms of electromagnetic hypersensitivity.

These described symptoms, the court said, affected one or more of the body systems listed in FEHA and limited the teacher's major life activity of working as a teacher. That the ADA may not "recognize" electromagnetic hypersensitivity should be immaterial to a court's interpretation of FEHA, the court concluded.

The appellate court then found that the trial court should not have dismissed at an early stage in the proceeding the teacher's claim of failure to provide reasonable accommodation.

Under California law, an employer must provide a reasonable accommodation for an applicant or employee with a known mental or physical disability unless the accommodation would cause undue hardship, the court noted.

To establish a failure to accommodate claim, the teacher must show:

• She has a disability covered by FEHA.
• She can perform the essential functions of the position.
• The school district failed to reasonably accommodate her disability.

A "reasonable accommodation" refers to a modification or adjustment to the workplace that allows the employee to perform the essential functions of the job held or desired.

Once notified of a disability, the employer's burden is to take positive steps to accommodate the employee's limitations. The employee also retains a duty to cooperate with the employer's effort by explaining his or her disability and qualifications. Reasonable accommodation, the court said, envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee's capabilities and available positions.

The teacher alleged that she suffered from a physical disability but could perform the essential functions of the position with reasonable accommodation. She suggested the school district could use paints, fabrics or other shielding materials to block or minimize exposure to electromagnetic frequencies. She alleged, however, that the district refused to work with her to provide a safe work environment.

Although the school district claimed that it did try to work with the teacher to accommodate her sensitivity, the court said the resolution of that factual dispute should be left to the jury and that it was improper to dismiss the claim before trial.

Brown v. Los Angeles Unified School District, Calif. Ct. App., No. B294240 (Feb. 18, 2021).

Professional Pointer: Under the ADA, a worker with a disability is defined as someone who has a physical or mental impairment that substantially limits how that person can perform a major life activity. Under FEHA, an employee with a condition that limits a major life function is protected, regardless of whether the limitation is substantial.

Joanne Deschenaux, J.D. is a freelance writer in Annapolis, Md.