Unlawful Termination in California: Whistleblowing and Disability

It is the public policy of California that workers not be fired based on their disability, because they have reported illegal activity, or because they have refused to participate in illegal activity.

California Labor Code section 1102.5(b) prohibits an employer from retaliating against an employee for reporting to a government agency any activities that he reasonably believes to violate a state or federal statute.  Labor Code §1102.5 further prohibits retaliation for refusing to participate in any action that would lead to the violation of any state or federal statute. It is illegal to perform contracting work in California without a license (See, e.g. Bus. & Prof. Code§7028). Insurance Fraud is a crime under both Federal and State law (18 U.S.C. §§1341, 1343; Cal. Ins. Code §§1871, et seq.).

Under the California Fair Employment and Housing Act (“FEHA”), it is unlawful for an employer to fail to provide reasonable accommodation for the known disability of an employee, unless the employer demonstrates that doing so would impose an undue hardship. Gov’t Code §12940(m); Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192; Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1383. The elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual, i.e., he can perform the essential functions of the job position; and (3) the employer failed to reasonably accommodate the plaintiff’s disability.  Wilson, supra, 169 Cal.App.4th at 1192.

The FEHA imposes an additional duty on the employer to engage in a timely, good faith interactive process with the employee to determine effective reasonable accommodations.  Gov’t Code § 12940(n); Wilson, supra, 169 Cal. App. 4th at 1193; Milan v. City of Holtville (2010) 186 Cal. App. 4th 1028, 1035.  An employer’s failure to engage in this process is a separate FEHA violation.  Wilson, supra, 169 Cal. App. 4th at 1193.