Disability Bias Claim Remains After Workers' Compensation Decision

​A decision by the California Workers' Compensation Appeals Board (WCAB) denying an employee's claim of disability discrimination under Labor Code Section 132a did not prevent the employee from going forward with her claims of disability bias and failure to provide reasonable accommodation under the Fair Employment and Housing Act (FEHA), a California appeals court ruled.

Labor Code Section 132a proscribes a relatively narrow range of discriminatory conduct by employers, intended to protect employees who are injured on the job and who file for workers' compensation benefits. FEHA, the court explained, targets a much broader range of discriminatory conduct and imposes affirmative duties on employers as to disabled employees.  

The employee, who worked as a monitor at a chicken processing facility, slipped at work while wearing company-issued rubber boots and broke her left wrist. Following surgery to address the broken wrist, the employee was restricted in the use of her left hand and wrist for work. The restrictions included no heavy work and no pulling, pushing, pinching or lifting heavy weights with her left hand.

The employee returned to her regular position as a monitor with no modification to her duties. She told her supervisor that she needed light duty, given the restrictions on using her left hand. But her supervisor told her that if she couldn't do the work, she should quit.

The employee claimed that she continued to encounter issues because she could only work with one hand, but that her supervisor ignored her requests for accommodation.

Three years after the employee was injured, the company announced a restructuring that would affect two chicken processing plants, which were located four miles apart. Some employees would have to transfer and would get to choose their position based on seniority.

The employee was told that she was losing her position as a monitor because employees with more seniority would fill the open monitor positions. The company's labor relations manager told the employee that the only position he believed she could do with her restrictions was pallet jack driver.

The employee did not believe she could do the pallet jack driver job with one hand and proposed seven other positions she believed she could perform, but she was told that only the pallet jack job was available. At the time, there were 100 open positions at the plant where the employee worked and an additional 300 open positions at the second plant nearby, but the labor relations manager never reviewed either list of open positions with the employee.

The evidence showed it was undisputed that the employee could not safely perform the pallet jack driver position with her restrictions. The employee was subsequently terminated because she could not perform the one job she had been offered.  

Approximately 300 workers at the plant where the employee worked were involved in the restructuring. Of these 300 workers, about 10 were terminated. No other workers with the same level of seniority as the employee lost their jobs as part of the restructuring.

After her termination, the employee filed a FEHA lawsuit and a Labor Code Section 132a petition with the WCAB.

Scope of Labor Code Section 132a

The court first noted that Labor Code Section 132a applies to an employer that discharges or discriminates against an employee because the employee has filed a workers' compensation claim, has received workers' compensation benefits or has testified in another employee's workers' compensation case.

In order to prevail on a claim for discrimination under Labor Code Section 132(a), the employee must show not only that the employer's action harmed an employee who suffered an-on-the-job injury, but also that the employee was treated differently than employees who had not suffered workplace injuries. Furthermore, the employer can defend its actions by showing that they were necessitated by the realities of doing business.

The workers' compensation judge found against the employee, and the employer argued that this decision barred the employee's FEHA claims. The trial court agreed and ruled that the disability bias claims could not go forward. The employee appealed, and the appellate court reversed.

The employee brought three claims under FEHA: disability discrimination, failure to provide reasonable accommodation and failure to engage in an interactive process. The appeals court noted that FEHA seeks to assure that those employees with a disability who can perform the essential duties of the employment position with reasonable accommodation have the opportunity to do so and are not discriminated against based on their disability.

Significantly, the court said, for the purposes of a FEHA claim, the cause of an employee's disability is irrelevant. The focus is on the employer's efforts to reasonably accommodate the disability, regardless of its cause.

The workers' compensation judge ruled only that the employee had not been discriminated against because she suffered a workplace injury. The issues decided in that proceeding were not the same as the issues implicated in the employee's FEHA disability discrimination claim, the appeals court said. Furthermore, FEHA encompasses a whole range of affirmative duties and other requirements applicable to the employer, such as the continuing obligations to make reasonable accommodations and engage in an interactive process, that have no relevance to a Labor Code Section 132a proceeding, the court said. 

Kaur v. Foster Poultry Farms LLC, Calif. Ct. App., No. F081786 (Sept. 14, 2022).

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