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.