Brown v. LAUSD establishes that symptoms of ‘electromagnetic hypersensitivity’ a.k.a. ‘Microwave Sickness’ could be deemed a ‘physical disability’ under the FEHA

LOS ANGELES, CA / ACCESSWIRE / March 26, 2021 / Today, JML Law announced it has won a major appeal in the California Court of Appeal that establishes that a plaintiff who pleads symptoms and physical manifestations of “electromagnetic hypersensitivity” has adequately alleged that they suffer from a “physical disability” under the California Fair Employment and Housing Act (“FEHA”).

In the majority opinion handed down in the case, Brown v. LAUSD (Appeal No. B294240), the Court of Appeal recognized that it doesn’t matter whether or not other courts in the United States have recognized “electromagnetic hypersensitivity” as a disability under the federal Americans with Disabilities Act (“ADA”) because JML Law’s client, Laurie Brown, has brought her case not under the ADA, but under FEHA, which is broader in scope. The Court of Appeal held that Brown sufficiently alleged that she suffered from a physical disability under the FEHA and that she sufficiently stated a cause of action for failure to accommodate, where she alleged that LAUSD refused to honor an accommodation which LAUSD had agreed to provide to Brown. The Court of Appeal stated that based on their reading of Brown’s First Amended Complaint, “LAUSD’s actions here do not align with those of an employer taking positive steps to accommodate the employee’s limitations.”

The complete published opinion by the Court of Appeal can be accessed at https://www.courts.ca.gov/opinions/documents/B294240.PDF.

Read more at: https://www.accesswire.com/viewarticle.aspx?id=637661&token=hzivngfkuma2h2xz6rhu

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Brown v. Los Angeles Unified School Dist., 2021 WL 631030 (Cal. Ct. App. 2021)

Laurie Brown, a teacher at Millikan Middle School, alleged she experienced chronic pain, which was allegedly caused by a new Wi-Fi system the school had installed.  Brown’s medical provider diagnosed her with “electromagnetic hypersensitivity sensitivity” (EHS).  Brown eventually quit, claiming she could not return to work “without being overcome with crippling pain.”  Among other things, Brown alleged discrimination based upon a physical disability, failure to accommodate her disability, and retaliation.  The trial court sustained the District’s demurrer to Brown’s complaint, but the Court of Appeal reversed, holding that Brown had sufficiently alleged a disability under the Fair Employment and Housing Act (FEHA), even though at least two other (non-California) courts have held that EHS is not a recognized disability under the federal Americans with Disabilities Act (ADA).  The Court also held that Brown had adequately alleged a cause of action for failure to provide a reasonable accommodation for a physical disability.  However, the appellate court agreed with the District that Brown had failed to allege a failure to engage in the interactive process or that any adverse action was taken against her with discriminatory or retaliatory motive – in short, there was a “disagreement between the parties as to whether the Wi-Fi was causing her disability.”

In a stunningly candid concurring opinion, Justice John Shepard Wiley Jr., expressed concern that this is the “first court in the United States of America – a nation of over 300 million people – to allow a claim that ‘Wi-Fi can make you sick.’”  Justice Wiley continued:  “The law worries about junk science in the courtroom.  One concern is that a partisan expert witness can bamboozle a jury with a commanding bearing, an engaging manner, and a theory that lacks respectable scientific support…  It does not take much experience as a trial judge in Los Angeles to realize the use of expert witnesses has run riot.”  A potential solution?  Justice Wiley suggests the use of court-appointed experts pursuant to Cal. Evid. Code §§ 730-732 – “few judges have tried this option, though, because the parties never suggest it.”

For more on the topic:

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USA February 23 2021

Is Wi-Fi sickness a disability? The California Court of Appeal just said it is in Brown v. Los Angeles Unified School District (2d Dist., Div. Eight), Case No. B294240. In a case that tests the limits of California’s liberal pleading standard, the appellate court green-lighted a claim of a woman who asserted a disability of “electromagnetic hypersensitivity,” or, as the concurring justice put it, “Wi-Fi sickness.”

The trial court had sustained a demurrer, granting judgment for the employer, a school district. The appellate court revived the plaintiff’s claim for failure to provide a reasonable accommodation.

The court acknowledged that it is likely the first to recognize Wi-Fi sickness as a disability under laws against discrimination. In fact, the court discussed contrary federal court authority, distinguishing those cases by concluding that the definition of “disability” in California’s Fair Employment and Housing Act is broader than in the Americans with Disabilities Act.

Apart from the holding that Wi-Fi sickness is a disability under FEHA, California employers should take note of the facts alleged about the failure to provide a reasonable accommodation.

After the school district installed a new Wi-Fi system, the plaintiff teacher complained of headaches and other symptoms caused by exposure to the electromagnetic waves. The school district initially tried to accommodate the teacher by turning off the Wi-Fi in her classroom and an adjacent one. The teacher said that her symptoms persisted and asked for additional accommodations. By that point, the school district’s consultant had reported that the Wi-Fi and radio frequencies at the school “evidenced a safe and non-hazardous working environment.” Based on that report, the school district did not grant any further accommodation, and the teacher sued.

In his concurring opinion, Justice Wiley expressed reluctance “about giving any sort of green light to this unprecedented and unorthodox disability claim.” But that’s exactly what the court did.

The decision serves as a reminder of just how easy it is to survive a pleading challenge in California.

Source: https://www.lexology.com/library/detail.aspx?g=52d76fb5-7915-485b-a3bb-277637a32a5f

The full verdict is accessible from this link.

More on the topic: https://betweenrockandhardplace.wordpress.com/2021/02/24/ehs-california-appellate-court-holds-that-wi-fi-sickness-is-a-disability/

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