By Allison Scott, Feb 23, 2021 | Original article here.
Is Electromagnetic Sensitivity (EMS) aka “Microwave Radiation 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 Sensitivity (EMS),” or, as the concurring justice put it, “Wi-Fi sickness.”
The Court ruled:
“We conclude that Brown adequately pled her cause of action for failure to provide reasonable accommodation for her disability. We reverse on this cause of action.
. . . On June 26, 2018, Brown filed the FAC which alleged five causes of action pursuant to FEHA:
- Discrimination based on physical disability;
- Failure to accommodate;
- Failure to engage in the interactive process;
- Retaliation; and
- Failure to prevent discrimination and retaliation.
. . . Brown requested general damages, special damages, loss of earnings and benefits, attorney fees and costs, injunctive relief, equitable relief, and any other relief the trial court deemed just and proper.
. . . FEHA states a “physical disability” includes, but is not limited to, “any 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. For purposes of this action: [¶] . . . [¶] (ii) A . . . condition . . . limits a major life activity if it makes the achievement of the major life activity difficult. [¶] (iii) ‘Major life activities’ shall be broadly construed and includes physical, mental, and social activities and working.” (§ 12926, subd. (m)(1); see also Cal. Code Regs., tit. 2, § 11065, subd. (d)(2)(A), (B).)
. . . A “reasonable accommodation” means a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010.) Although an accommodation is not reasonable if it produces an undue hardship to the employer, a plaintiff need not initially plead or produce evidence showing that the accommodation would not impose such an undue hardship. (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 356.) Importantly, whether plaintiff’s requested accommodation is reasonable cannot be determined on demurrer. (Id. at p. 368–369.)
. . . Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee’s capabilities and available positions. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385 (Spitzer).) If a reasonable accommodation does not work, the employee must notify the employer, who has a duty to provide further accommodation. (See id. at p. 1384 [if employer did not know a reasonable accommodation was not working, a duty to provide further accommodation never arose].)
. . . For good reason, California state civil procedure makes complaints easy to write and hard to attack: experience shows litigation effort devoted solely to attacking pleadings is costly and time consuming and rarely yields much helpful information for litigants about the true value of their case. (Cf. Clermont & Yeazell, Inventing Tests, Destabilizing Systems (2010) 95 Iowa L.Rev. 821, 829–859 [critique of contrary federal practice that devotes much effort to testing litigation at the complaint stage].)
. . . 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 . . . Wi-Fi systems now may possibly invite costly litigation from members of the public who say that Wi-Fi made them sick.”
. . . The option of a court-appointed expert has been available in California for generations. Few judges have tried this option, though, because the parties never suggest it. The last thing trial lawyers want is another source of uncertainty in the case: something powerful and beyond their control. But the hardworking judges with experience “reported a high degree of satisfaction with the services provided by the expert . . . .” (Cecil & Willging, The Use of Court-Appointed Experts in Federal Court (1994) 78 Judicature 41, 42; cf. Learned Hand, supra, 15 Harv. L.Rev. at p. 56 [advocating “a board of experts or a single expert, not called by either side, who shall advise the jury of the general propositions applicable to the case . . . . ”].)
The trial court may want to consider this option in this case. It is more effort to go off the beaten path, but scholarly literature can help by surveying some practical aspects. (See generally, Rubinfeld & Cecil, supra [citing and discussing sources].)
This nation has a vast wealth of genuine scientific expertise, and the pandemic has been forcing our scientists to become familiar with video communication. The internet has reduced the significance of geographic distance. You don’t need a Nobel prize winner: excellent junior faculty and even graduate students can be vastly knowledgeable, motivated, and hungry to boot. After all, few scholars are accustomed to the rates at which California lawyers bill. Authentic and objective experts thus may be surprisingly affordable, given the scholarly world’s commitment to public service and the prestige and satisfaction that can flow from a judicial appointment like this. And once you appoint that expert, it can be startling how fast the case settles. With hope, I join the majority opinion.”
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 (FEHA) is broader than in the Federal 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 pulsed, data-modulated, Radiofrequency Electromagnetic Microwave Radiation (RF-EMR) . 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.