Plaintiff Robert Bezzina was hired by United Airlines in 1992 to be a ramp serviceman, a position in which he handled freight, mail, and baggage. Like millions of others, an order from then-Los Angeles Mayor Eric Garcetti made it mandatory to wear a face mask at work in order to protect the wearer and others from COVID-19. But Bezzina couldn’t. He suffered from a breathing disability that prevented him from complying with the order.

Most of Bezzina’s job was performed out of doors, so United allowed him to work without a mask from March 2020 until the Mayor’s order. After he was placed on extended leave, he sued United for disability discrimination under California’s Fair Employment and Housing Act (“FEHA”). Judge John F. Walter of the United States District Court for the Central District of California granted summary judgment to the airline because he found United’s “no-exception mask policy to be reasonable.” Bezzina appealed to the Ninth Circuit Court of Appeals.

A unanimous three-justice panel of the United States Court of Appeals for the Ninth Circuit issued an unpublished opinion on October 2 that reversed Walter’s ruling. The panel was comprised of Judge Danielle J. Forrest, Section Circuit Judge A. Wallace Tashima, and District Court Judge Kathleen Cardone of the Western District of Texas, sitting by designation.

The Ninth Circuit opinion began with an explanation of FEHA, which was enacted to protect employees from harassment or discrimination on the basis of a protected characteristic, such as age, ancestry, color, creed, and disability. It is enforced by the California Civil Rights Department. The appellate opinion begins with an explanation of the three elements that are needed to sustain a disability claim. These are: the plaintiff “suffers from a disability, was otherwise qualified to do his or her job, and was subjected to adverse employment action because of the disability.” United agreed that Bezzina was disabled, but the suit did not provide medical details.

California Government Code §12940(a) (1) further clarifies that If an employee cannot perform job duties in a manner that would not endanger his or her health” or that of others, “even with reasonable accommodation, an employer is not liable for refusing to allow the unsafe employee to work.”

This is the clarification that formed the basis of Walter’s decision to issue summary judgment in favor of United, finding that Bezzina “could not establish a prima facie case because he could not safely perform the essential functions of his job without a face mask.” Nor could the plaintiff show that “United’s legitimate, non-discriminatory reason for placing (him) on leave was pretext.” Judge Walter also found that United’s reasoning for a no-exception mask mandate was “to protect its employees and customers from COVID.” He ruled that United’s offer to give Bezzina extended leave without pay until he could return to work without a face mask was reasonable.

The Ninth Circuit did not agree with Walter’s ruling for two reasons: First, United did not provide sufficient, objective medical evidence about Bezzina’s condition. Second, the Circuit Court disagreed that summary judgment in favor of United was appropriate because “a reasonable jury could find that Bezzina was able to perform the essential functions of his job without endangering the health or safety of others, if permitted to wear a face shield with a drape, instead of a face mask.”

The Ninth Circuit also pointed out that various publications, called “Guidance” from local, state, and federal governments, provided useful information on how and why to make exceptions to mask mandates for people with disabilities. Instead, Walter relied on guidance from the Centers for Disease Control and Prevention that advised masks should completely cover the nose and mouth and therefore it did not recommend face shields. The district opinion also stated that United had consulted with experts at the Cleveland Clinic before it issued its no-exception to mask policy.

However, the opinion criticized Walter for not considering other opinions from medical experts and government Guidances that discuss when there should be mask exceptions for “those who have problems breathing.” He said these views were “not germane to business decisions weighing risk of infection.”

The various government Guidances included permitting face shields with hoods or drapes. The Ninth Circuit thus decided that it would be up to a jury to determine what would be an acceptable alternative to a face mask for a man who claimed he worked outdoors in a restricted area and was not in contact with other employees. Bezzina also argued that the circumstances of his work were sufficient to entirely exempt him from the rules of the mask mandate.

In summary, the Ninth Circuit found that there were “genuine dispute(s) of material fact” about whether Bezzina could have worked safely with a face shield and whether United's offer of unpaid leave was an accommodation or “an actionable adverse action.”

The district court was reversed and the case remanded. Now it will be up to a jury to decide whether FEHA lawfully protected Bezzina from discrimination on the basis of his disability, as it was enacted to do.