STATE OF CALIFORNIA | GOVERNOR EDMUND G. BROWN JR.

DEPARTMENT OF FAIR EMPLOYMENT & HOUSING DIRECTOR PHYLLIS W. CHENG
2218 Kausen Drive | Suite 100 | Elk Grove | CA 95758-7115
(916) 478-7251 | TTY (800) 700-2320 | Fax (916) 478-7329
www.dfeh.ca.gov

May 20, 2014 Contact: Fahizah Alim
For Immediate Release (916) 743-2374
fahizah.alim@dfeh.ca.gov

MULTIMILLION-DOLLAR SETTLEMENT LEVELS THE PLAYING FIELD FOR PEOPLE WITH DISABILITIES IN LAW SCHOOL ADMISSIONS

ELK GROVE – The California Department of Fair Employment and Housing (DFEH)
announced today a multimillion-dollar settlement that prohibits the Law School Admission
Council (LSAC) from discriminating against people with disabilities who take the Law School
Admission Test (LSAT). (HTML | PDF) Requiring reasonable accommodations for test takers
with disabilities, the more than $8 million agreement was a successful collaboration between
state and federal civil rights agencies and the private bar.

“This settlement ensures fairness and levels the playing field for persons with disabilities to enter
the legal profession,” said Anna Caballero, Secretary of the Business Consumer Services and
Housing Agency. “The Department of Fair Employment and Housing continues to take steps to
ensure that the underrepresented are helped.”

The settlement, filed Tuesday in federal court for entry of an order by U.S. District Judge
Edward M. Chen, includes an $8.73 million payment, of which $6.73 million will be equally
distributed to an estimated 6,300 individuals nationwide who applied for testing accommodations
on the LSAT from January 1, 2009 through May 20, 2014. This total includes attorney’s fees and
costs to DFEH.

“DEFH took down a longstanding barrier to entering the legal profession for people with
disabilities,” said Phyllis Cheng, DFEH Director. “California once more leads the way in
opening doors for all who strive to become future attorneys regardless of disability.”

The complaint arose from DFEH’s two-year investigation which began after the Department
received complaints of discrimination from individuals who had requested testing
accommodations on the LSAT, the examination required for admission to most law schools.

In July 2010, Cheng issued a Director’s complaint alleging that LSAC denied reasonable
accommodations to prospective test takers with disabilities, and that whenever a test-taker
received testing accommodations, LSAC sent a letter which informed law schools that 1) the
applicant was an individual with a disability; 2) the applicant’s LSAT scores “did not have the
same meaning” as other applicant’s test scores; and 3) that the applicant’s test scores had to be
viewed “with great sensitivity and flexibility.” (HTML | PDF) The U.S. Department of Justice
joined in the federal court case, expanding it to encompass nationwide claims. (HTML | PDF)

“This nationwide settlement illustrates the important role that government enforcement agencies
can play in helping to secure relief for students with disabilities,” said Jocelyn Larkin, Executive

Director of The Impact Fund a nationally recognized expert in civil rights and systemic
litigation. “Given the difficulties that private plaintiffs can sometimes face in obtaining class
certification in disability rights cases, DFEH’s ability to pursue systemic litigation can help
protect our significant civil rights principles for all Californians.”

The mission of the DFEH is to protect the people of California from unlawful discrimination in
employment, housing and public accommodations and from hate violence. For more information,
visit the Department’s Web site at www.dfeh.ca.gov.

A Los Angeles jury has returned a verdict of $3.5 million against drug store chain Rite Aid Corporation in a recent disability discrimination case.

According to the complaint filed, Martha Palma had worked for Rite Aid for years and had been a store manager at one of its stores in Los Angeles. She was fired months after being diagnosed with a “non-work related serious disability” in late 2010.

Ms. Palma filed claims for disability discrimination, retaliation for complaining of discrimination and harassment, and failure to engage in the interactive process, according to the statement. A jury in Los Angeles Superior Court found in her favor on each of these claims.

At trial, Ms. Palma testified that Rite Aid “treated her differently and terminated her because of the stigma related to employees with disabilities,” Shegerian said in a public statement. “She testified that despite being able to perform her job duties, the defendant never tried to discuss accommodations with her, instead manufacturing a false reason to terminate her[] and then fired her.”

 

In California, it is unlawful for an employer to terminate you because you suffer from a disability. What happens when you have been injured and attempt to return to work? Many employers offer light duty assignments to employees who are temporarily unable to perform the essential duties of their positions, some do not. While there is no hard and fast rule that an employer must offer permanent light duty, a recent decision gives hope to those who seek to remain productive members of the workforce following an injury.

In Cuiellette v. City of Los Angeles, a California court found an employer liable for disability discrimination because it failed to provide an employee with a 100% disability rating a permanent light duty assignment.  It is significant to note that the employer had available (and permanent) light duty positions and routinely made use of those positions to accommodate injured employees.  The employer argued that it had never provided a permanent light duty position to an employee with a workers’ compensation rating of 100%. The court dismissed the employer’s argument, reasoning that a workers’ compensation disability rating does not absolve the employer of the obligation to engage in the interactive process and determine whether the employee can perform the essential functions of an open alternative position.  The employer’s decision to
rely on the workers’ compensation disability rating (and the advice of a third party workers’ compensation administrator to terminate the employee) was wrong and supported a finding for violation of the law.

The Cuiellette decision makes clear that the legal parameters of Workers’ Compensation and the Fair Employment and Housing Act, or FEHA. Your legal rights under those two systems are different and your employer’s legal obligations are not the same, nor do they always coincide.  If you have been injured and are returning to work with restrictions, you owe it to yourself to be aware of your legal rights. Fighting disability discrimination is a passion of our law firm. We are here to help.

If you are an employer faced with the decision of accommodating a disabled employee, you should  focus on the employee’s actual restrictions in relation to the essential functions of the employee’s existing position and/or open alternative positions. If you have a number of facilities or locations, the required decision-making process may
dictate that you look outside the original facility where the employee worked before making an offer of accommodation or denying accommodation.  The process of returning a previously injured employee to work is a complicated one that presents traps for the unwary. Give us a call if you have any questions.


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