What’s That Ringing Sound? Court of Appeal Holds Electromagnetic Hypersensitivity Can Constitute a “Physical Disability” Under FEHA

Electromagnetic hypersensitivity (“EHS”), also known as microwave syndrome or being allergic to electricity, has been represented in pop culture and social media for several years.[i]  One of the most prominent portrayals of EHS is in the TV show Better Call Saul, the prequel to Breaking Bad, where successful attorney Chuck McGill – a name partner at a fictional Albuquerque law firm – displays increasingly severe symptoms of EHS.[ii] He asks his law firm to shut off all sources of electricity, including all of the lights and everyone’s cell phones, but as his symptoms worsen, he stays at home and covers his walls with “space blankets,” rarely venturing out of his house. He writes legal documents on a typewriter and has an assistant run between his house and the office, but it is unclear how useful Chuck is to the firm at this point.

EHS recently made its first foray into the legal system.[iii] In Brown v. Los Angeles Unified School District, a teacher alleged that she suffered from EHS, leading the Court to address, among other claims, whether EHS constitutes a disability under California’s Fair Employment and Housing Act (“FEHA”), and whether the school district failed to provide the teacher with a reasonable accommodation.[iv]

Brown v. Los Angeles Unified School District (2021) 2021 WL 631030 (“Brown”)

Brown’s Alleged Disability and LAUSD’s Accommodation Efforts

Laurie Brown was a teacher at Millikan Middle School in Los Angeles when the Los Angeles Unified School District (“LAUSD”) installed an upgraded Wi-Fi system at the school in 2015.[v] Immediately after LAUSD installed and activated the Wi-Fi system, Brown reported to her supervisor that she experienced multiple symptoms including chronic pain, headaches, nausea, shortness of breath, fatigue, itching, and burning sensations on her skin. LAUSD granted Brown a leave of absence, but within a few hours of her return to the school about a week later, her symptoms reappeared.[vi] Brown’s doctor then diagnosed her with EHS.

Following Brown’s EHS diagnosis, she filed a formal request for accommodation with LAUSD in May 2015, which agreed to make several changes: the district disconnected the Wi-Fi access points in Brown’s classroom and the adjacent classroom, and used “a hardwired computer lab with Wi-Fi turned off” for Common Core testing.[vii] But LAUSD’s efforts did not work. In August 2015, Brown’s doctor wrote that “emerging EMF [EHS] sensitivity was disabling” Brown.[viii] Over the next few months, LAUSD made further accommodations to try and decrease her exposure to the Wi-Fi, including disconnecting routers in Brown’s classroom and adjoining classrooms, but Brown continued to experience EHS symptoms.[ix]

Her doctor ultimately placed her on a medical leave of absence from September 3, 2015, through November 16, 2015, noting that her restrictions upon returning were to “work with minimal Wi-Fi exposure.”  Brown’s symptoms did not improve during her leave, which her doctor extended to June 14, 2016.[xi]

While on leave, Brown filed another formal request for accommodation, this time asking that LAUSD do more to reduce her Wi-Fi exposure, such as using a special paint and “other forms of shielding materials” to block Wi-Fi and radio frequencies in her assigned classroom – similar requests to what Chuck McGill made of his fictional law firm in Better Call Saul – and to authorize further studies to determine a location where Brown could teach with minimal exposure to Wi-Fi and radio frequencies. Relying on the company that installed the Wi-Fi system, which had concluded the school was safe, LAUSD initially denied Brown’s request for accommodation. A few months later, however, LAUSD agreed, for some unknown reason, to retain a neutral consultant to conduct further testing, and to allow Brown to choose the consultant. [xii]  Adding more strife to the interactive process, LAUSD then went back on its agreement regarding the neutral consultant. Brown never returned to work and filed suit against LAUSD alleging, among other things, failure to provide a reasonable accommodation for her purported EHS. [xiii]

The Trial Court Sustained LAUSD’s Demurrer

LAUSD sought a dismissal of the case by filing a demurrer, arguing that EHS “is not a ‘recognized’ disability” under FEHA,[xiv] and that, even if it were, LAUSD provided a reasonable accommodation. The trial court sustained the demurrer without leave to amend and dismissed the case; Brown appealed.

The Court of Appeal Reverses

Brown Sufficiently Pled a Physical Disability Under FEHA

The Court of Appeal reversed. Part of its opinion addressed LAUSD’s argument that Brown had failed to allege a “recognized” disability. The Court noted that LAUSD had relied on two federal cases to support its position, and both of these cases interpreted the federal Americans with Disabilities Act of 1990 (“ADA”), not FEHA. The Court noted that the California Legislature had “specifically stated its intent that the FEHA provide broader protection than under the ADA.”[xv] In relevant part, FEHA defines a physical disability as including, but not limited to:

“[A]ny physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:

(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.

(B) Limits a major life activity.”[xvi]

The statute then provides, “‘Major life activities’ shall be broadly construed and includes physical, mental, and social activities and working.”[xvii]

Given the broad scope of “physical disability” under FEHA and Brown’s various allegations of physical symptoms that limited her ability to work – a major life activity under FEHA – the court found that she had adequately pled physical disability under the statute, and that it was “immaterial” whether her diagnosis was a recognized disability under the ADA.[xviii]  The Court therefore reversed the trial court’s decision, allowing Brown’s case to move forward past the pleading stage. In his concurrence, Justice Wiley expressed concern over the decision: “[E]ven with our state’s healthy attitudes about easy pleading, I worry about giving any sort of green light to this unprecedented and unorthodox disability claim.”[xix]

Brown Sufficiently Pled Failure to Provide a Reasonable Accommodation for her Physical Disability

After determining that Brown had sufficiently alleged a physical disability under FEHA, the Court addressed her cause of action for failure to provide a reasonable accommodation. According to the Court, Brown had sufficiently alleged that she would have been able to perform the essential functions of her position with reasonable accommodations, “such as the use of paints, fabrics and/or other shielding materials to block or minimize exposure to electromagnetic frequencies.”[xx]  The Court also emphasized that LAUSD reneged on its agreement for a neutral testing consultant and merely relied on the original consultant that installed the Wi-Fi system. Brown alleged sufficient facts, according to the Court, to overcome this initial pleading challenge.

Takeaways

Time will tell whether Justice Wiley’s concerns materialize, and whether other courts will conclude that EHS is a recognized disability under the FEHA. While LAUSD might ultimately prevail in this case as it proceeds to trial, employers should nevertheless keep in mind the following takeaways:

• Treat requests for reasonable accommodation seriously, even when the alleged disability is uncertain. As Brown makes clear, it is not difficult under California law to establish a disability. While courts may later decide that EHS is not a disability, there is no need to incur the cost of becoming a test case. Instead, explore reasonable accommodations and consider immediately granting requests that can be easily provided. In Brown, LAUSD rejected the request to use paints and fabrics to block exposure, even though these accommodations could presumably have been provided without much difficulty.
• Absent a strong reason, be extremely careful in withdrawing agreed-upon accommodations. It is not clear why LAUSD initially granted the request allowing Brown to choose a neutral consultant, but rejected the seemingly easier request for paints and fabrics. However, having granted the accommodation request, the Court was critical of the employer’s decision to renege on that agreement.

[i]  The first cases of EHS were reported in Sweden in the 1980s, and have increased since then. (Maël Dieudonné, Electromagnetic hypersensitivity: a critical review of explanatory hypotheses, Environmental Health (May 6, 2020).

[ii] Better Call Saul (AMC 2015).

[iii] Brown at p. *9 (Wiley, J., concurring).

[iv] The Court addressed several other issues, but those are beyond the scope of this article.

[v] Brown at p. *1.

[vi] Id. at p. *2.

[vii] Ibid.

[viii] Ibid.

[ix] Ibid.

Ibid.

[xi] Ibid.

[xii] Ibid.

[xiii] Id. at pp. *3-*4.

[xiv] Id. at p. *4.

[xv] Ibid. (citing Gov. Code, § 12926.1).

[xvi] Gov. Code, § 12926, subds. (m)(1)(A), (B)(i-ii).

[xvii] Gov. Code, § 12926, subds. (m)(1)(B)(iii).

[xviii] Brown at p. *5.

[xix] Id. at p. *9 (Wiley, J., concurring).

[xx] Id. at p. *7.