In a case decided in April, 2002 (Bagatti v. Dept. of Rehabilitation, 02 C.D.O.S. 2911), the California Court of Appeals held that failure to accommodate a disability could lead to damages separate and apart from disability discrimination, under the amended California Fair Employment & Housing Act. The Court departed from an earlier case and said that Federal ADA guidelines do not go far enough in describing the employer’s obligations under California disability law. Plaintiff Marilyn Bagatti alleged that she is physically disabled due to polio. She had asked for an accommodation in the form of a motorized cart or wheelchair to take her to and from her car and carry her around her workplace. Alternatively, she asked for railings and chairs in a hallway to aid her in moving from place to place. The Department refused. She filed a complaint with the DFEH, and while it was pending, she fell and broke her leg, purportedly because she was forced to walk a longer distance than she could safely travel.

After the injury, Bagatti was unable to return to work. She filed suit, and the Department convinced the trial court to dismiss it, saying 1) She was not a "qualified individual with a disability" under the ADA definition, since she did not fit any of the 3 categories established under the EEOC’s "interpretive statement" (enforcement regulations); and 2) this was a Workers Comp discrimination claim, to be pursued under Labor Code section 132a.

The court of appeals disagreed, holding that the EEOC’s regulations under ADA do not match the requirements of the Fair Employment & Housing Act. Government Code § 12940(m) requires the employer to "make reasonable accommodation for the known physical or mental disability of an applicant or employee [unless it would pose an undue hardship]." The employee need not prove that the accommodation is needed to ensure equal opportunity, avoid adverse employment action or give her the benefits enjoyed by other employees. The court held that Bagatti showed a link between her disability (the inability to walk long distances) and the job requirements (which included long walks between departments).

The court held that Workers Comp was not the exclusive remedy for this case, which arose not because of disability discrimination, but for "failure to accommodate," which the court recognized as a separate cause of action. As of this writing, the case has been reinstated and sent back to the trial court for further proceedings.

©2002 Louis A. Storrow.