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"Employers Would Be Wise to Handle ADA Accommodations With Care"

Daily Journal

California's Fair Employment and Housing Act prohibits discrimination in employment on the basis of disability. Government Code Section 12940(a). In addition, Government Code Sections 12940(m) and 12940(n), respectively, require employers to provide reasonable accommodations to disabled employees and to engage in an interactive process with employees in determining whether such a reasonable accommodation is possible and if so what it should be.

Failure of an employer to comply with either subsection (m) or (n) provides employees with independent causes of action under the Fair Employment and Housing Act. See Williams v. Genentech Inc., 139 Cal.App.4th 357 (2006). Judging by published and unpublished appellate court decisions over the past five years, including one as recently as this month, California employers often run afoul of these FEHA provisions.

The June 2 decision by the 2nd District Court of Appeal in Gelfo v. Lockheed Martin Corporation, 2006 DJDAR 6921, is a case of first impression in California, requiring employers to provide a reasonable accommodation to an applicant or employee whom it regards as physically disabled. Gelfo is typical of the pitfalls California employers face.

Charles Gelfo was employed by Lockheed and hurt his back on the job. He was on medical leave for a time and received workers compensation. He sought to return to work, but there was confusion over whether he was still limited as to what job functions he could perform.

Without consulting Gelfo and relying entirely on the workers compensation medical reports, Lockheed decided there was no open job he could perform and refused to rehire him. Gelfo sued, saying he was almost completely healed and could have performed the job for which he applied. Because Lockheed never engaged in an interactive process with Gelfo, it did not know that.

The trial court ruled in favor of Lockheed, but the Court of Appeal reversed. Lockheed had argued that if, as Gelfo admitted, he was no longer disabled, he was not entitled to protection under FEHA. The Court of Appeal disagreed because Lockheed regarded Gelfo as disabled. See, Government Code Sections 12926(i)(4) and (5) and (k)(4) and (5).) Lockheed next argued that persons who are not actually disabled, but only regarded as disabled, are not entitled to protection under the reasonable accommodation provision.

The Court of Appeal disagreed again and held that someone who is regarded as disabled can be discriminated against just as much as someone who is actually disabled. Compliance with the reasonable accommodation/interactive process requirements would prevent an employer from mistakenly denying a job to someone like Gelfo who the employer wrongly perceived as disabled. The court therefore held that Gelfo had a viable cause of action for the failure of Lockheed to engage in the interactive process.

In reaching this conclusion the court rejected contrary positions adopted by the 9th U.S. Circuit Court of Appeals in its interpretation of the Americans With Disabilities Act in Kaplan v. City of North Las Vegas, 323 F.3d 1226 (2003), and by the Equal Employment Opportunity Commission, which has taken the position that an employer does not have a duty to provide reasonable accommodation to someone who is covered under the Americans with Disabilities Act only because she or he is regarded as having a disability.

The 2nd District Court of Appeal is the first California appellate court to address this issue, which has divided the federal appellate courts.

A number of principles of which employers need to be aware have emerged from the cases and have become fairly settled over the past five years.

Government Code Section 12940(m) requires that an employer provide only a reasonable accommodation for a disabled employee or applicant and is not required to provide any accommodation if to do so would impose an undue hardship on the employer. See Williams v. Genentech (employer not required to hold job open indefinitely for disabled employee); Raine v. City of Burbank, 135 Cal.App.4th 1215 (2006) (employer not obligated to create a new position in order to accommodate a disabled employee).

Although an employee ordinarily has the burden in some minimal manner of requesting a reasonable accommodation (Raine), the employer has an affirmative duty to engage in the interactive process if 1) it knows the employee has a disability, 2) it knows the employee has experienced workplace difficulties and 3) it knows the disability may hinder or prevent the employee from requesting an accommodation. Barnett v. U.S. Airways Inc. 228 F. 3rd 1105 (9th Cir. 2000), vacated on other grounds, U.S. Airways Inc. v. Barnett, 535 U.S. 391 (2002), cited with approval in Halton v. Southland Title of Orange County (Although his employer knew he had a problem, alcoholic employee did not request an accommodation because denial is central to alcoholism); see also, Prillman v. United Air Lines Inc., 53 Cal.App.4th 935 (1997).

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. Bagatti v. Department of Rehabilitation; Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245 (2000). Mere failure to engage in the process is actionable. Diaz v. Federal Express Corp., 373 F. Supp. 2d 1034 (C.D. Cal. 2005).

An employer cannot prevail on summary judgment on a reasonable accommodation or interactive process claim, unless the employer can establish with undisputed evidence that 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. Claudio v. Regents of University of California, 134 Cal.App.4th 224 (2005); Jensen v. Wells Fargo Bank. This three-part test provides a roadmap for how to avoid claims.

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) an offer of accommodation that is reasonable and effective. Zivkovic v. Southern California Edison Co., 302 F. 2nd 1080 (9th Cir. 2002); see also, Claudio v. Regents of University of California.

The employee's disability need only be one of the factors leading to the denial of a reasonable accommodation and not the sole factor. Head v. Glacier Northwest Inc., 413 F. 3rd 1053 (9th Cir. 2005); see Williams v. Genentech Inc.; Daniels v. Union Pacific Railroad Company, 2006 Cal. App. Unpub. LEXIS 263.

Finally, although it is well settled that the employee must be qualified to perform the essential functions of the job in question, with or without an accommodation, the appellate courts have divided over the question of who has the burden of proof on that question.

The California Supreme Court has granted review of Green v. State, 132 Cal.App.4th (2005), to decide that question. No. S137770, review granted Nov. 16, 2005.

The reason employers often stumble over the reasonable accommodation and interactive process obligations undoubtedly vary. Some courts have suggested that discrimination against the disabled arises from "thoughtlessness and indifference." Helen L. v. DiDario, 46 F. 3rd 325 (3rd Cir. 1995); see also, Black v. Department of Mental Health, 83 Cal.App.4th 739 (2000).

Employer resistance to the process also may be a product of the fact that many disability claims appear highly subjective, such as claims based on stress. Others have suggested that discrimination against disabled employees arises because employers tend to think of discrimination in the framework of race or gender discrimination in which the goal is to treat employees equally.

By contrast, disability discrimination can arise precisely because disabled workers are treated the same as other workers. See, e.g., Henrietta D. v. Bloomberg, 331 F. 3rd 261 (2nd Cir. 2003) ("[T]he [Americans with Disabilities Act] ... creates an affirmative duty in some circumstances to provide special, preferred treatment"); Presta v. Peninsula Corridor Joint Powers Board, 16 F. Supp. 2d 1134 (N.D. Cal. 1998) ("[A] person with a disability may be the victim of discrimination precisely because she did not receive disparate treatment when she needed accommodation.")

Employers need to tread carefully whenever they are confronted with an apparently disabled employee or job applicant who requests or is in obvious need of a reasonable accommodation in order to perform a job. Discussing the situation with the employee or applicant in good faith is essential, as is making and documenting a genuine effort to find some means of accommodating the employee or applicant so he or she can continue as or become a productive member of the employer's workforce.

John T. Hansen is a partner in the San Francisco office of Nossaman Guthner Knox & Elliott.

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