Offering Disabled Employee An Alternate Position With Comparable Pay, Benefits And Promotion Opportunity Is Not Disability Discrimination

In Malais v. Los Angeles City Fire Department, (— Cal.Rptr.3d —, 2007 WL 926611, Cal.App. 2 Dist., Mar. 29, 2007), a California Court of Appeal considered the claim of a disabled firefighter that he was illegally discriminated against when his employer refused to give him the job he sought because of his disability.

The court ruled that the employer did not discriminate because it offered the firefighter alternative positions with comparable pay, benefits and promotion opportunities.

Facts

Gregory Malais (“Malais”) was a Captain in the Los Angeles City Fire Department (“Department”), who suffered an injury that resulted in his right leg being amputated and replaced with a prosthesis. Following his recovery, Malais sought “platoon” duty, which involves working irregular hours at fire stations and preparing for and fighting fires. The Department refused, citing risks to the public, other firefighters and Malais himself of allowing him such duty with a prosthetic leg. It instead assigned him “special” duty, which consists of a more traditional 40-hour work week in a business office environment.

Malais sued the Department alleging disability discrimination in violation of the Fair Employment and Housing Act (“FEHA”) and an adverse employment action in violation of public policy. The trial court ruled in favor of the Department and Malais appealed.

Decision

The fact that the Department denied Malais his desired job solely because of his disability is undisputed. The court reviewed the California Supreme Court’s definition of an adverse employment action in Yanowitz v. L’Oreal USA, Inc., (2005) 36 Cal 4th 1049-1055. There, the Supreme Court defined an adverse action as discrimination regarding compensation, terms, conditions, or privileges of employment and disparate treatment in employment, specifically requiring people to work in a discriminatorily hostile or abusive environment. However, the Yanowitz Court added: “A change that is merely contrary to an employee’s interests or not to the employee’s liking is insufficient.”

Although Malais was denied the job he wanted because of his disability, he continued to receive promotions and opportunities for further promotion. Moreover, there was no evidence that he suffered from a hostile work environment. The appellate court said there is no precedent finding adverse employment actions “in transfers that involved working assignments the employee preferred less than other assignments, but with equal pay, benefits, promotional opportunities, and no hostile environment.”

The trial court therefore properly found that Malais did not suffer an adverse employment action and its judgment was affirmed.

Note: For a discussion of Yanowitz v. L’Oreal USA, Inc., please see our Legal Alert, "California Supreme Court Issues Major Ruling On Workplace Harassment, Bars Retaliation Against Manager Who Refused To Fire ‘Unattractive’ Employee," August 25, 2005.

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