The California Court of Appeal, in Brown v. Los Angeles Unified School District, recently ruled that electromagnetic sensitivity (become ill when exposed to “Wi-Fi” whether real or imagined) constituted a “physical disability” under the Fair Employment and Housing Act (FEHA).
Brown was an LAUSD teacher who asserted she had chronic pain and other symptoms due to her school’s new Wi-Fi system. The trial court sustained LAUSD’s demurrer to Brown’s complaint that alleged discrimination based on physical disability, failure to accommodate, failure to engage in the interactive process, retaliation, and failure to prevent discrimination and retaliation.
The Court of Appeal upheld disposing of four of the five claims based on the demurrer that Brown failed to allege sufficient facts to support her claims. However, the Court of Appeal concluded Brown had sufficiently alleged a physical disability under the FEHA, even though other courts have held that Wi-Fi sickness is not a recognized disability under the Americans with Disabilities Act (ADA).
The FEHA provides more worker protection than the ADA. Although illness from Wi-Fi is not a recognized disability under the ADA, it may nonetheless be a physical disability pursuant to FEHA when its alleged symptoms affect one or more body systems and limit the plaintiff’s ability to work.
It is rather uncertain whether a reasonable accommodation is possible when an employee claims Wi-Fi makes them sick. Few businesses can operate without Wi-Fi, especially with remote workers. When confronted with claims of new types of disability, California employers should consult with counsel about addressing the interactive process and potential accommodations.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
