Reasonable Accommodations

October 29, 2008

California Disability Law: Discrimination v. Failure to Accommodate

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.

October 19, 2008

What is “reasonable accommodation” of disability at workplace

by Arkady Itkin

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);

October 18, 2008

Interactive Process at Workplace in California

by Arkady Itkin

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.

October 18, 2008

California Disability Law: Reasonable accommodations and interactive process

by Arkady Itkin

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.