A Rose Is a Rose Is Not Retaliation: Why Requesting an Accommodation Should Not Be Considered “Protected Activity”

By Matthew R. Jedreski

Matt Jedreski, a 2008 graduate of the University of Michigan Law School, is an associate at Paul, Plevin, Sullivan & Connaughton LLP in San Diego, where his practice focuses on counseling and litigating on behalf of companies in employment and commercial disputes.

Section 12940(h) of California’s Fair Employment and Housing Act (FEHA) prohibits employers from retaliating against an employee who "has opposed any practices[,] . . . filed a complaint, testified, or assisted in any proceeding" under FEHA.¹ An employee’s simple request for a reasonable accommodation is neither an opposition, nor complaint, nor participation in a proceeding under FEHA. A request for accommodation thus should not serve as "protected activity" supporting a retaliation claim under Cal. Gov’t Code § 12940(h)—yet courts routinely find that it does.

Of course, if an employer fails to interact with the employee, refuses to implement a reasonable accommodation request, or takes adverse action against an employee for requesting an accommodation, the employee might have any number of viable claims: for failure to accommodate, failure to engage in the interactive process, disability discrimination, wrongful termination, etc. But a claim for FEHA retaliation should not lie if the claim relies solely on an accommodation request to satisfy the "protected activity" requirement.