San Francisco Employment Law Firm Blog

Last week, I participated in the interactive process discussion with my client and his employer - the state agency in Sacramento, to find reasonable accommodations to his disability (impairment of short-term memory and learning disability). The employer should an admirable willingness to comply with the disability laws under FEHA (Fair Employment and Housing Act) and engaged in the interactive process as required by law.

During our discussion in an attempt to see what reasonable accommodations, if any, may be available to my client, the employment lawyer for the State kept reiterating that it's the employee's burden to show that such reasonable accommodations are available. I, on the other hand, had to point out to the counsel for the State that he was incorrect. I reminded him that in one of the leading cases on the issue, Barnett v. U.S. Air, Inc. (9th Cir. 2000), the employer also tried to place the entire burden of showing the availability of reasonable accommodations on the employee, but the court disagreed, stating that to put the entire burden for finding a reasonable accommodation on the disabled employee and relief the employer from the duty to identify possible accommodations conflicts with the purpose of the law and thus doesn't make sense.

The employer must participate in a search for effective accommodations to disabilities of their employees because these employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations that the employer might have. Placing the entire burden on the employee to identify a reasonable accommodation risk shutting out many workers simply because they do not have the superior knowledge of the workplace that the employer has.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Interactive Process , Reasonable Accommodations

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Once an employer becomes aware of the need for accommodation for a qualifying disabled employee, that employer has a mandatory obligation under the law to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. An appropriate reasonable accommodation must be effective in enabling the employee to perform the duties of the position.

The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process. A party or an employer that obstructs or delays an interactive process may be found liable for acting in bad faith.

The duty to accommodate disability is a continuing duty that is not exhausted by one effort. The EEOC Enforcement Guidance notes that an employer must consider each request for reasonable accommodation, and that if a reasonable accommodation turns out to be ineffective and the employee with disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship. This rule fosters the framework of cooperative problem solving contemplated by the law, by encouraging employers to seek to find accommodations that really work, while preventing employees from requesting the most drastic and burdensome accommodations possible.

One kind of evidence that an employee is wrongfully terminated because of his or her disability is evidence that that employee was warned and reprimanded for issues in his performance that were caused by his or her disability. As the 9th Circuit noted in Humphrey v. Memorial Hospital Ass'n 239 F.3d 1128 (2001), conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination. The link between disability and (wrongful) termination is particularly strong where it is the employer's failure to reasonable accommodate a known disability that leads to discharge for performance issues resulting from that disability. Id.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Disability Discrimination , Interactive Process , Reasonable Accommodations , Wrongful Termination

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It is not uncommon for an employer to terminate an employee because of his or her disability in violation of FEHA and other anti-discrimination laws, and attempt to mask disability discrimination and failure to provide reasonable accommodations by telling an employee while terminating him that he can apply for other jobs in the company that might suit him. This move seems to be particularly obvious when the employer tells the employee that he should apply for any job externally, like any other outside applicant, not having any priority in hiring or consideration for any position.

The California courts are unimpressed with this move to go around the law protecting disabled workers. The Ninth Circuit specifically held in Barnett v. U.S. Air. Inc. (9th Cir. 2000) 228 F.3d 1105 that an offer to bid on other jobs, "a right the employee already had," did not represent reasonable accommodations as required by law. Reassignment involves more than a mere opportunity for disabled employees to compete. Quoting EEOC guidelines, the court concluded that reassignment within the meaning of reasonable accommodations means that the employee gets the vacant position if he/she is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congresses intended it when it enacted disability anti-discrimination laws.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Disability Discrimination , Disability at Workplace , Interactive Process , Reasonable Accommodations

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The second district made an important distinction between disability discrimination and failure to provide reasonable accommodations in Jensen v. Wells Fargo Bank 85 Cal.App.4th 245 (2000). In that decision, the court noted that the elements of a failure to accommodate claim are similar to the elements of disability discrimination under under California Gov. Code section 12940(a), but there are several important differences. For the purposes of the failure to accommodate claim, the employee does not need to show that he is able to perform the essential functions of his present job (like it is necessary to show in order to prove discrimination), but only that he or she is able to perform the duties of the job which he or she is seeking to be reassigned to.

Even more importantly, in claims for failure to accommodate, it does not matter whether the employee was terminated, suspended or otherwise disciplined in retaliation for his disability (like it is required in discrimination claims). The employer's mere failure to reasonable accommodate a disabled individual is a violation of the statute in and of itself. Cal.Gov. Code section 12940(k).

In other words, prevailing on a disability discrimination claim is harder than proving failure to accommodate, because it requires showing that the employee suffered an adverse employment action, and that there is a causal link between the disability/medical condition and the adverse employment action, while no adverse employment action needs to be shown in order to prevail on a separate claim for failure to provide reasonable accommodations to a disabled worker.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Disability Discrimination , Fair Employment and Housing Act (FEHA) , Interactive Process , Reasonable Accommodations , Wrongful Termination

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The California Fair Employment and Housing Act (FEHA) provides a non-exhaustive list of possible accommodations that an employer may consider to accommodate a qualified disability or medical condition of an employee. These typical reasonable accommodations include, but are not limited to:

• Making facilities accessible to and usable by disabled individuals;
• Job restructuring (modifying daily duties of an employee);
• Offering part-time or modified work schedules (to put less physical stress or allow time for medical appointments related to the disability);
• Reassigning to a vacant position;
• Acquiring or modifying equipment or devices (such as ergonomic keyboards, chairs, and lifting devices);
• Adjusting or modifying examinations, training materials or policies;and
• Other similar accommodations for individuals with disabilities as per California Government Code § 12926(n).

Because the above list is non-exhaustive and a range of other accommodations may be considered in the interactive process with an employee which employer must engage into by law, California courts look to cases decided under the ADA and Rehabilitation Act for guidance. Prilliman v. United Air Lines, Inc.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Disability at Workplace , Interactive Process , Reasonable Accommodations , Wrongful Termination

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Under California law (Fair Employment and Housing Act or "FEHA") an employer has an affirmative duty to engage in a timely, good-faith interactive process with an employee who is disabled or who the employer perceives to be disabled.

The interactive process is a discussion between an employer and employee that contemplates that the employee and employer will communicate directly with each other to exchange information about job skills and job openings to find a reasonable accommodations to the employee's disability to the extent possible, without constituting undue hardship on the employer.

Communicating with the employee's representatives, rather than with the employee personally, may suffice in some circumstances. In Hanson v. Lucky Stores, Inc., the court noted that it was appropriate for the employer to consult with employee's doctors and vocational rehabilitation specialists in order to identify available and suitable positions and offer those to the disabled employee.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Disability at Workplace , Interactive Process , Reasonable Accommodations

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The employer must engage in a “timely, good faith interactive process ... in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. Although the law doesn't specifically provide, the California court rulings make it clear that the employer must initiate the interactive process if the employee's disability is known or apparent. An employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities. Prilliman v. United Air Lines, Inc. (1997) 53 CA4th 935, 950.

An employer “knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation.” Faust v. California Portland Cement Co. (2007) 150 CA4th 864, 887. This means that if the employee's medical condition is not apparent (such as diabetes, carpal tunnel syndrome, etc.), the employer cannot be under a legal obligation to engage in an interactive process with that employee if the employer doesn't know and has no reason to know that the employee is suffering from disability or medical condition. However, if the employee's condition is obvious (a woman with an obvious pregnancy, an employee with a cast on his hand or foot, etc...) then the employer has to initiate the interactive process of providing reasonable accommodations to that disabled employee.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Disability at Workplace , Reasonable Accommodations

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