Until recently, the employers were able to successfully argue that a retaliation claim cannot be made based on requesting accommodation to a disability. This was due to the California case law that suggested that requesting an accommodation to a disability is not a “protected activity” within the meaning of FEHA anti-retaliation laws, and therefore no retaliation claim can be made based on denial of that request alone.
However, an amendment to Cal. Gov. Code section 12940, effective January 1, 2016, made it unlawful for an employer to retaliate or otherwise discriminate against a person for requesting a reasonable accommodation, regardless of whether the employer granted that request. The last part of this amendment is powerful. In addition to allowing for a retaliation claim based on request for accommodation / failure to accommodate, this amendment means that now the employer will not be able to defend a retaliatory act by claiming that they couldn’t possibly retaliate against the employee because they accommodated his disability.