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A Quartet of Court Decisions Help Clarify Reasonable Accommodation Standards


07/27/06

Four Recent Decisions

Four recent appellate court decisions have helped to clarify employers’ obligations to disabled employees under the reasonable accommodation and interactive process requirements of the Americans with Disabilities Act and the California Fair Employment and Housing Act. These decisions, however, also highlight the complexity of the reasonable accommodation/interactive process requirements over which employers frequently stumble.

· In Dark v. Curry County (July 6, 2006) 06 CDOS 5970, the United States Court of Appeals for the Ninth Circuit held that, in determining whether reassignment to another job is a possible accommodation of a disabled employee, the employer must not only consider immediately open positions, but also those positions that will become available within a reasonable period.

· In Gelfo v. Lockheed Martin Corporation (2006) 140 Cal. App. 4th 34, the Second District Court of Appeal held that when an employee is not actually disabled but is regarded as disabled by the employer, the latter must engage in an interactive process with the employee to determine if there is a job the employee can perform. This is the first reported case in California to reach this result.

· In Williams v. Genentech, Inc. (2006) 139 Cal. App. 4th 357, the First District Court of Appeal held that, when an employee is on an extended disability leave, the employer is not required to hold the employee’s job open indefinitely in order to accommodate the employee.

· In Raine v. City of Burbank (2006) 135 Cal. App. 4th 1215, the Second District Court of Appeal held that the reasonable accommodation requirement does not require an employer to create a new job for a disabled employee.

Rules of the Road

The results in the above cases, two wins for employers and two wins for employees, demonstrate that the area of reasonable accommodation of disabled employee or applicants is full of potential pitfalls for employers. Nevertheless, the case law over the last five years (and there are plenty of decisions on the subject) has developed a few rules that employers should follow in order to comply with the law.

· Although an employee ordinarily has the burden in some minimal manner of requesting a reasonable accommodation, the employer has an affirmative duty to engage in the interactive process if 1) it knows the employee has a disability; 2) knows the employee has experienced workplace difficulties; and 3) knows the disability may hinder or prevent the employee from requesting an accommodation.

· In a claim based on the reasonable accommodation or interactive process cause of action, the employee does not have to show that he or she was the subject of an adverse employment action by the employer. Mere failure to engage in the process is actionable. Thus, an employer cannot unilaterally dispense with the process, even if it feels certain there is no way the employee can be reasonably accommodated.

· The interactive process requires 1) direct communication between employer and employee to explore in good faith reasonable accommodations; 2) consideration of the employee’s request; and 3) offering an accommodation that is reasonable and effective.

· Finally, it is important to be aware that the ADA and California’s FEHA do not require the employer to make any form of accommodation. Rather, the employer is only required to provide a reasonable accommodation, and is not required to accommodate the employee if to do so would impose an undue hardship on the employer.

Best Practices

In sum, to avoid exposing itself to liability for failure to engage in the reasonable accommodation/interactive process:

· An employer should immediately engage in communication with an employee or applicant who the employer learns or believes is disabled and who may have difficulty performing his or her job regarding possible ways to accommodate the employee/applicant’s disability.

· The employer must consider the employee/applicant’s suggestions and also conduct a fairly comprehensive review of other available jobs if the primary job in question cannot be restructured to accommodate the employee/applicant.

· The employer should be able to defeat the employee’s disability discrimination claim if 1) a reasonable accommodation was offered and refused; 2) there was no vacant position within the employer’s organization for which the disabled employee was qualified and capable of performing with an accommodation; or 3) the employer did everything within its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.

· The employer should always be able to show that it made a good faith effort to find a reasonable accommodation.

John T. Hansen, partner at Nossaman, specializes in employment law, bankruptcy, corporate reorganization and complex business litigation. He can be reached at (415) 438-7245 or jhansen@nossaman.com.

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