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Disability Discrimination & Failure to Accommodate - California Court Places Burden on Plaintiff to Initiate Process of Finding “Reasonable Accommodation”
When an injured party can no longer perform the core functions of his or her job, the employer may be entitled to end the employment relationship. However, if the employee can perform certain functions, even in another job category, the employer may be required to find a “reasonable accommodation” that allows the employee to remain on the payroll.
But it is not a one-way street, and there are certain things an employee must do to trigger rights under the federal ADA or California’s Fair Employment and Housing Act (FEHA). In essence, the employee must request that the employer find a reasonable accommodation and then must participate in an “interactive” process to determine what, if anything, is possible. This requirement is set forth in section 12940 (n) of the California Government Code.
Recently, the court of appeal held that if an employee does not take the initiative to start the interactive process, the employer is not obligated to find a reasonable accommodation on its own. The case is Milan v. City of Holtville. Excerpts from the court’s opinion help frame the issue for both employers and employees in future cases. This is what the court said (internal citations and internal quote marks have been eliminated):
“Realistically, when an employer is aware of an employee's disability, the employer's interest is not in assessing whether the individual's impairment may legally be considered an actual disability. Rather, the focus of the interactive process centers on employee-employer relationships so that capable employees can remain employed if their medical problems can be accommodated . . . .
Importantly, by its terms section 12940 subdivision (n) requires that the employee initiate the process. . . . On the other hand, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation. Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties' breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith. . . . . As one court stated in interpreting the analogous federal requirement to engage in an interactive accommodation process: “Properly participating in the interactive process means that an employer cannot expect an employee to read its mind and know that he or she must specifically say 'I want a reasonable accommodation,' . . . . The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn't know how to ask for it, the employer should do what it can to help. The employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the employee with a disability.”
Turning to the plaintiff’s case in particular, the court noted:
“Here, even if we generously interpret an employee's obligation under section 12940, subdivision (n), the record will not sustain a finding Milan met her obligations under the statute. . . . . In this context, good faith required that Milan directly express to the city her interest in retaining her job. Only then would an obligation to engage with her with respect to possible accommodations arise. . . . In short, where, as here, an employer has not received any communication from an employee over a lengthy period of time, and after the employee has been given notice of the employer's determination the employee is not fit, an employer is not required by section 12940, subdivision (n), to initiate any discussion of accommodations. Imposition of such a duty under those circumstances would contradict the express terms of the statute which requires that the employee initiate the interactive process.”
For your convenience, a copy of the court’s opinion is attached.
At Slote & Links we regularly advise employers and employees, as well as unions, about employment-related issues. Feel free to contact our office if you need assistance in this area.