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

The post JML Law Wins Appeal in ‘Unprecedented’ Disability Case Against LAUSD For Failure to Accommodate Teacher With Electromagnetic Hypersensitivity appeared first on EMFSA.

The full verdict is accessible from this link

Opinion 1: California Appellate Court DID NOT rule about Electromagnetic Hypersensitivity (EHS) as a disability.

The case is far from over, and nothing’s been proven yet.

As Judge Wiley who concurred on the ruling stated:

“I worry about giving any sort of green light to this unprecedented and unorthodox disability claim. Plaintiff’s counsel was most reluctant at oral argument to admit it, but it seems clear we are 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.’ ”

Input of a lawyer:
“I have read this Appellate decision several times and I don’t believe it says what is being reported that it says. I think that people are over-reading the words of the Court.  In reversing the demurrer, the Court said: “Brown adequately pled physical disability within the four corners of the statute.”  They specifically say ‘physical disability’ and the Court’s discussion indicates it was immaterial what caused the disability. And nowhere in the decision does it say that the disability was caused by electromagnetic fields or is triggered by electromagnetic fields. So, the conclusion that the Court found that EHS is a disability under the act is a stretch. The court said she adequately showed that she was impaired.”

The superior court must now hear the case and determine the appropriate accommodations that LAUSD needs to adopt to address the plaintiff’s physical disabilities. One of the Appellate jurists recommended that the superior court employ an expert witness to help make these determinations.

Opinion 2:

Input of an attorney:

It’s true that the case is not over.  The plaintiff must still prove what she alleges in her complaint. 

But as Justice Wiley’s concurrence states, the court’s holding greenlights disability claims where the alleged disability is electromagnetic hypersensitivity.  The defendant argued that even if what the plaintiff alleges in the complaint is true, the plaintiff does not have a disability within the meaning of the disability protection law.  The appellate court’s ruling means that it will be for the jury to decide, so long as the plaintiff can offer evidence supporting her factual allegations, including about her electromagnetic hypersensitivity.

Based on my reading of the decision, I disagree with the suggestion that the cause of the disability is irrelevant under the court’s decision here and going forward in the case.  She alleged that her disability is electromagnetic hypersensitivity. So when the court ruled that she adequately alleged a disability, it is approving that condition as a recognized disability under the statute. 

What makes this case significant news, in my opinion, is not what will happen with Ms. Brown’s case.  That remains to be seen.  The significance lies in the ruling’s ramifications on other cases.  The ruling is binding precedent for other cases in the California trial courts.  Justice Wiley’s concurrence hints at one practical ramification: settlement value.  Before this ruling, a plaintiff alleging a similar claim faced daunting hurdle of no American court previously holding that electromagnetic hypersensitivity qualifies as a disability under disability protection laws.  That hurdle is no more (assuming this ruling remains good law), which changes settlement value of similar claims significantly.

Note: these views are based on different readings of the ruling, and is not legal advice.

The post Differences in legal interpretation of Brown v. Los Angeles Unified School District ( Wi-Fi sickness/disability) appeared first on EMFSA.