Pensinger

In this case, we review an order dismissing a case following a grant of a motion for summary judgment. In doing so, we address the meaning of the term “mental disability” as defined under Government Code section 12940, the Fair Employment and Housing Act (FEHA). For some reason, the Legislature imposed a requirement that a physical disability must limit a major life activity without imposing the same requirement for a mental disability. Although we question the wisdom of making it harder for a person who has suffered a physical disability to come within the FEHA than a person suffering a mental disability, we do not substitute our judgment for that of the Legislature. Consequently, we conclude plaintiff (who suffers from a reading disorder) has raised a triable issue of fact regarding whether he suffered from a disability under the FEHA.

However, this finding does not end our inquiry since plaintiff must also show his employer had knowledge of his mental disability. The question then becomes: Is it enough that an employer be aware of deficiencies in an employee’s performance which are the result of a mental deficiency or must an employer have actual knowledge that the…