Five Bars of Wi-Fi Are Grounds For Disability Claims
The California Court of Appeal, Brown v. Los Angeles Unified School District, recently ruled that that electromagnetic sensitivity (aka “being sick to Wi-Fi”) constituted a “physical disability” under Fair Employment and Housing Act (FEHA). Brown was an LAUSD teacher who claimed chronic pain and other symptoms caused by her school’s new Wi-Fi system. The trial court sustained LAUSD’s demurrer to Brown’s complaint that alleged discrimination based on physical disability, failure to accommodate, failure to engage in the interactive process, retaliation and failure to prevent discrimination and retaliation.
The Court of Appeal upheld disposing of four of the five claims based on the demurrer that Brown failed to allege sufficient facts to support her claims. However, the Court of Appeal held that Brown sufficiently alleged a physical disability under FEHA, even though other courts have held that Wi-Fi sickness is not a recognized disability under the Americans with Disabilities Act (ADA) and that, as a matter of pleading, Brown sufficiently alleged her claim for failure to accommodate.
California employers must remember that FEHA provides more worker protection than the ADA. Although being sick from Wi-Fi is not a recognized disability under the ADA, it may nonetheless be a physical disability pursuant to FEHA when its alleged symptoms affect one or more body systems and limit the plaintiff’s ability to work.
The good news for employers is that the Court of Appeal dispensed with four disability discrimination and retaliation claims at the demurrer stage so that discovery and subsequent motion practice should be more narrowly focused which should also discourage future “kitchen sink” allegations.
Employers are undoubtedly left scratching their heads, wondering whether a reasonable accommodation is possible when an employee claims Wi-Fi makes them sick. Few businesses can function without Wi-Fi, especially with remote workers, emphasizing the importance of the interactive process and accommodations. Thus, if confronted with claims of new types of disability, California employers should consult with counsel about addressing the interactive process and potential accommodations.
The ruling is a good reminder that technology constantly adds new complications to the workplace. Employers need to be even more vigilant when receiving workplace accommodation requests and sweeping seemingly ridiculous claims under the rug can land you in court.