HIV Positive Employee Continuing to Work In California

Do Disabled Individual's Favourable Job Reports and Evaluation of His Physicians Indicate That He Could Have Continued Working Had His Accomodation Been Not Discontinued ? In Bell v. Wells Fargo Bank (1998) 62 Cal.App.4th 1382, the plaintiff was HIV positive and his employer initially followed his physician's recommendation that plaintiff be permitted to work a forty-hour workweek spread over only four days, with plaintiff telecommuting from his home on one of those days. The employer, later, however, informed plaintiff that it would no longer allow him to telecommute. Plaintiff's physician told the employer that the change would threaten plaintiff's health and would force plaintiff "out on disability." When the employer refused to change its position, plaintiff ceased working for his employer and applied for and received state and federal disability benefits from insurance and Social Security. Plaintiff also filed a complaint for damages, backpay and reinstatement pursuant to FEHA. The trial court granted summary judgment for the employer, solely concluding that plaintiff was estopped from claiming disability discrimination because he had admitted that he could not perform the essential functions of his job on his disability applications. (Ibid.) The court of appeal reversed the grant of summary judgment. ( Bell, supra, 62 Cal.App.4th at p. 1389.) The employer had relied in part on plaintiff's statements, made in connection with his disability applications, that he was disabled and unable to perform "'his regular and customary work.'" ( Id. at p. 1387.) However, as the court of appeal explained, that language was quite ambiguous inasmuch as it could have referred to plaintiff's job after his employer refused to continue the accommodation. ( Id. at p. 1388.) Plaintiff had received two promotions and uniformly favorable job evaluations while working with the accommodation. ( Id. at p. 1384.) His physicians believed that plaintiff could continue to work if the accommodation was reinstated. ( Id. at p. 1388.) The appellate court concluded that on that record, plaintiff's statements were not inherently and totally inconsistent with his litigation position that he could have continued working had his accommodation been left in place. ( Id. at p. 1388.)