Jacalyn Thornton, a part time reporter for the Fresno Bee, developed a repetitive motion injury to her hands after more than 20 years on the job. She filed a workers compensation claim, and later took time off for physical therapy. When her doctor restricted her typing, she asked for an accommodation under the Americans with Disabilities Act (ADA). The newspaper considered several options, including voice recognition technology and reassignment, but ultimately concluded that the reporter could no longer be employed as a reporter. She sued in California Superior Court under both the ADA and the California Fair Employment & Housing Act (FEHA). The Newspaper transferred the case to Federal Court, and that court found that the reporter was not disabled under either state or federal law.

The 9^th Circuit Court of Appeal held on August 15, 2001 that the District Court was right about the ADA, but not necessarily about the California FEHA. Federal law requires that a person have a "substantial limitation" on a major life activity in order to claim ADA protection. The court held that since Ms. Thornton could shop, cook, walk, make meals and make beds, she had enough use of her hands so that she could not call herself "disabled." Federal courts have held that the ADA doesn't guarantee that someone be able to hold a particular job - so Ms. Thornton's inability to type did not entitle her to protection.

However, with recent amendments to the FEHA, California law has done away with the requirement that a limitation be "substantial." In fact, the California Legislature has declared that the FEHA has always provided "greater protection" to employees than federal law. On that basis, the 9^th Circuit Court of Appeal reinstated Thornton's lawsuit, and instructed the District Court to determine whether the 2000 amendments to the FEHA apply to Thornton's 1997 firing.

The opinion is particularly interesting in that two of the three judges agreed that the inability to type for more than an hour a day was not a major impediment to working. In a dissenting opinion, the third judge pointed out that the inability to use a computer keyboard might disqualify Thornton from a "broad class" of jobs, which should have placed her under the protection of the ADA. Judge Berzon notes that computers have become so integral a part of the workplace that the inability to use one effectively should be considered a "substantial limitation on a major life activity" under the federal disability law.

While the battle over the meaning of the ADA may be of great concern outside of California, it is likely that more and more employees will be citing California law to protect their rights. Under some interpretations of the new FEHA, all employees may be protected by the law at one time or another. Arguably, even a farsighted person whose vision is completely corrected by glasses or contacts may be entitled to some accommodation under state disability law.

All California Employers would do well to become informed about the new protections available to their employees.

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Copyright 2001 Louis A. Storrow. All rights reserved.