by Karimah Lamar, Carothers DiSante & Freudenberger LLP
Can an employee’s frequent tardiness be used to establish that she has a disability because she is limited in the major life activity of working? Does an employee have to request leave under the California Family Rights Act (CFRA) before she has the right to take job-protected leave under the CFRA? A California Court of Appeal answered those questions in a recent case brought by a radio host.
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Radio Host Sues for Disability Discrimination, Violation of CFRA
In November 2011, “Estelle,” an on-air radio personality, was terminated by Univision Radio after approximately 14 years at the company. In 2007, Estelle was diagnosed with a benign tumor that required monitoring every 6 months. The tumor caused no physical symptoms, and although she did experience some pain, it was unrelated to the tumor. Importantly, there was no evidence that the pain or any other symptom inhibited Estelle’s ability to work.
Six months before she was terminated, Estelle missed work or was late to work nine times because she had doctor’s appointments related to her tumor. Univision claimed that Estelle was repeatedly observed arriving at work only minutes before her show was to start or after it had already started. Moreover, other personnel complained about her attendance issues.
In October, Estelle was told by her supervisor, “Martina,” that she had to arrive at work 30 to 60 minutes before she went on the air so that she could review the music log, research relevant topics, and prepare her remarks. Martina also reported her concerns about Estelle’s tardiness and lack of preparation to the vice president of content. Univision claimed it terminated Estelle after it saw no improvement in her performance.
Estelle filed a lawsuit, claiming, among other things, that Univision had discriminated against her on the basis of a disability and interfered with her right to take leave under the CFRA. Univision argued that she didn’t have a disability because her tumor didn’t interfere with her ability to perform her job, it never denied her leave request, and it had a legitimate nondiscriminatory reason for terminating her employment.
Estelle argued that there was a factual dispute over whether she has a disability, Univision had sufficient notice of her leave request, and the timing of her termination was suspicious. The trial court agreed with Univision and dismissed Estelle’s case without a trial.
On appeal, the appellate court considered, among other things, whether Estelle actually has a physical disability, whether she created a factual dispute regarding Univision’s discriminatory intent, and whether she provided sufficient notice of her need to take leave.
Did Estelle Have a Disability?
Under the Fair Employment and Housing Act (FEHA) (the statute that Estelle claimed Univision violated when it allegedly discriminated against her), physical disabilities include any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that affects one or more of the body’s systems and “limits a major life activity.”
Work and normal cell growth are both considered major life activities. Univision claimed that Estelle’s tumor was asymptomatic, and although it acknowledged that she experienced some pain, there was no evidence that the pain interfered with her ability to work.
The appellate court found that neither Estelle’s symptoms nor the pain she was experiencing in her side resulted from her tumor or caused her any difficulty in performing her job. However, the court further found that the inquiry into whether a person has a disability doesn’t end with whether her ailment caused her difficulty in performing her job.
When the mitigating measures she takes to treat or accommodate the physical ailment (in this case, being late and missing work to attend doctor’s appointments) limit a major life activity, the ailment may qualify as a disability under FEHA.
Estelle was late or absent from work at least nine times in the 6 months prior to her termination. Repeated or extended absences from work constitute a limitation on major life activity. Accordingly, under FEHA, Estelle could be considered disabled. However, to prove discrimination, she had to establish discriminatory intent.
Did Univision Have Discriminatory Intent?
Discriminatory intent is a necessary element of a discrimination claim. Estelle didn’t dispute that Univision offered a legitimate nondiscriminatory reason for her termination. Instead, she argued that the evidence presented by her former employer was pretextual, or an excuse to discriminate.
However, simply saying that Univision was lying without providing actual evidence of a discriminatory motive was insufficient. Estelle had to create a factual dispute regarding intent by providing evidence that the company’s proffered reason for her termination was untrue and the real reason was disability discrimination.
On appeal, the court considered (1) the inconsistencies in Univision’s evidence regarding Estelle’s punctuality, (2) her positive performance reviews, and (3) the timing of her termination. The appellate court found that evidence, taken together, was sufficient to rebut Univision’s claim that it had a legitimate reason to terminate Estelle and establish discriminatory intent.
Did Estelle Provide Sufficient Notice That She Needed Leave?
Univision also argued that Estelle wasn’t entitled to leave under the CFRA because she failed to request it. Again, the appellate court found Univision’s argument without merit. All an employee needs to do to request CFRA leave is provide verbal notice that’s sufficient to make her employer aware that she needs leave and state the anticipated duration of her leave. Importantly, the employee doesn’t have to specifically request leave under a certain statute.
Once it is given sufficient notice, the employer must inquire further to determine whether leave protected under the CFRA is triggered, and it must request any additional necessary information, including the expected duration of the leave (something Univision argued Estelle failed to provide). The employer’s duties are triggered when the employee provides enough information to put it on notice that she may be in need of leave.
The appellate court ultimately reversed the trial court’s ruling in favor of Univision on all claims. Estelle’s case will therefore proceed to trial. Soria v. Univision Radio Los Angeles, Inc. (California Court of Appeal, 2nd Appellate District, 11/15/16).
Bottom Line
While this case appeared to be a run-of-the-mill disability discrimination/wrongful termination case, there are a couple of key takeaways that set it apart. First, the court seems to have expanded the definition of a physical disability that limits a major life activity to include not just the ailment itself but any tardies and absences resulting from doctor’s appointments to treat it.
Second, an employee’s failure to inform her employer of the duration of any necessary leave doesn’t preclude the employer’s duty to provide leave. Once the employer has received sufficient notice of the need for leave, it has a duty to inquire further to ascertain any relevant information necessary to determine if protected CFRA leave is triggered, including determining the duration of the leave.
Karimah Lamar Carothers, a contributor of California Employment Law Letter, can be reached at klamar@cdflaborlaw.com.