Brown v. Los Angeles Unified School Dist., 2021 WL 631030 (Cal. Ct. App. 2021)

Laurie Brown, a teacher at Millikan Middle School, alleged she experienced chronic pain, which was allegedly caused by a new Wi-Fi system the school had installed.  Brown’s medical provider diagnosed her with “electromagnetic hypersensitivity sensitivity” (EHS).  Brown eventually quit, claiming she could not return to work “without being overcome with crippling pain.”  Among other things, Brown alleged discrimination based upon a physical disability, failure to accommodate her disability, and retaliation.  The trial court sustained the District’s demurrer to Brown’s complaint, but the Court of Appeal reversed, holding that Brown had sufficiently alleged a disability under the Fair Employment and Housing Act (FEHA), even though at least two other (non-California) courts have held that EHS is not a recognized disability under the federal Americans with Disabilities Act (ADA).  The Court also held that Brown had adequately alleged a cause of action for failure to provide a reasonable accommodation for a physical disability.  However, the appellate court agreed with the District that Brown had failed to allege a failure to engage in the interactive process or that any adverse action was taken against her with discriminatory or retaliatory motive – in short, there was a “disagreement between the parties as to whether the Wi-Fi was causing her disability.”

In a stunningly candid concurring opinion, Justice John Shepard Wiley Jr., expressed concern that this is 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.’”  Justice Wiley continued:  “The law worries about junk science in the courtroom.  One concern is that a partisan expert witness can bamboozle a jury with a commanding bearing, an engaging manner, and a theory that lacks respectable scientific support…  It does not take much experience as a trial judge in Los Angeles to realize the use of expert witnesses has run riot.”  A potential solution?  Justice Wiley suggests the use of court-appointed experts pursuant to Cal. Evid. Code §§ 730-732 – “few judges have tried this option, though, because the parties never suggest it.”