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Teacher With Electromagnetic Hypersensitivity Can Pursue Only Her Reasonable Accommodation Claim
Laurie Brown has been a teacher employed by the Los Angeles Unified School District (LAUSD) since 1989. In 2015, LAUSD installed an updated Wi-Fi system at the school where Brown taught that would accommodate the iPads, Chromebooks, and tablets LAUSD intended to provide its students. During public comment before LAUSD installed the new system, an environmental scientist and expert on electromagnetic frequency stated she could not support the installer’s conclusions about the safety of the new Wi-Fi system. LAUSD’s medical personnel also indicated they were uncertain about any long-term effects the Wi-Fi system may have on students and staff, but LAUSD promised to continue actively monitoring any developments.
Soon after LAUSD installed the new system, Brown had chronic pain, headaches, nausea, itching, ear issues, and heart palpitations. Brown thought the new Wi-Fi caused her symptoms. Brown reported her symptoms, and her school granted her leave from work “due to these symptoms, on an intermittent basis, for several days thereafter.” After Brown returned to work the following week, she immediately fell ill again. Brown’s doctor subsequently diagnosed her with electromagnetic hypersensitivity, which is also referred to as “microwave sickness.”
Brown then requested accommodations. LAUSD held its first interactive process meeting with Brown on July 15, 2015. Following the meeting, LAUSD agreed to disconnect the Wi-Fi access points in Brown’s assigned classroom and in an adjacent classroom. LAUSD also agreed to use a hardwired computer lab with Wi-Fi turned off. However, Brown alleged that LAUSD’s accommodations were not reasonable and did not work. For example, while LAUSD disconnected the routers in Brown’s classroom and one adjoining classroom, other classrooms nearby continued to have their routers active. Another one of Brown’s physicians subsequently placed her on a medical leave of absence for three months.
While on leave, Brown filed a second request for accommodation. Brown requested that LAUSD further reduce her exposure using paints and other forms of shielding materials to block Wi-Fi and radio frequencies in her classroom. After another interactive process meeting, LAUSD denied Brown’s second request for accommodation, relying on testing the installer performed that indicated the system was safe. Brown appealed the denial, and LAUSD agreed to provide a “neutral expert EMF inspection for further microwave measurements.” However, the parties could not reach an agreement about the expert to use. During this time, a third physician extended Brown’s medical leave through June 2016.
Brown expressed frustration that LAUSD was retracting an accommodation it had promised and claimed she could not return to work without being overcome with crippling pain. She also alleged she was forced to go out on a disability leave, which exhausted her approximately 800 hours of accrued paid leaves. Brown then sued LAUSD, alleging it discriminated against her based on her electromagnetic hypersensitivity, failed to accommodate her condition, and retaliated against her in violation of the Fair Employment and Housing Act (FEHA). The trial court dismissed Brown’s lawsuit finding she failed to plead sufficient facts to support each of her claims, and Brown appealed.
On appeal, the Court of Appeal concluded that Brown could not establish her claims for disability discrimination or retaliation. For both discrimination and retaliation claims under the FEHA, an employee must show that the employee took an adverse employment action because of the employee’s membership in a protected classification or protected activity. However, the court concluded Brown could not make this showing. For Brown’s disability discrimination claim, the court noted she could not establish an “adverse employment action” because she merely alleged that LAUSD would not reasonably accommodate her disability. The court reasoned Brown was improperly conflating an “adverse employment action” with a failure to accommodate the claim. Further, the court found that Brown did not show any facts from which to infer any discriminatory intent. This is because Brown did not have any facts to suggest that LAUSD: 1) clung to any belief that the campus was safe; or 2) refused to accommodate her because it was biased against her as a person with a disability.
However, the Court of Appeal concluded that Brown adequately alleged facts sufficient to support a claim for failure to provide reasonable accommodation. Brown alleged that LAUSD did agree on a reasonable accommodation (to hire an independent consultant to determine where on-campus exposure to the electromagnetic frequencies was most minimal) and then changed its mind, deciding the campus was “safe.” Since these allegations were sufficient to support a claim for failure to accommodate, the court reversed the trial court’s decision regarding this claim only.
Brown v. Los Angeles Unified Sch. Dist. (2021) 60 Cal.App.5th 1092.
A critical part of the FEHA reasonable accommodation and interactive process is that the employer must keep the process moving. Every potential reasonable accommodation identified in the interactive process must be run to the ground and determined to be reasonable and implementable, or not. The analysis supporting that determination must be documented.