Contributors

Jennifer Woo Burns

Of Counsel

Employers widely recognize that the Fair Employment and Housing Act (“FEHA”) imposes an affirmative duty on employers to make a reasonable accommodation for the known disability of an employee or applicant unless doing so would impose undue hardship to the employer's operations. California Government Code 12026(m). Determining the nature of the accommodation is a case-by-case process that requires individualized review based on the employee’s limitations and the nature of the employee’s essential duties. This can be a daunting task for employers, and diligent employers, who are accustomed to bearing the administrative and compliance burdens of fulfilling their EEO obligations, may be inclined to take decisive and unilateral action in response to receiving notice of an employee’s need for an accommodation. For example, upon learning that an employee needs some functional assistance in order to perform their job due to a disability, the employer may barrel ahead with unilateral decisions about what the accommodation should be, and implement the accommodations with the good intention of promptly addressing the situation for the employee. This decisive action, however, could result in a violation of the disability accommodation law that it is meant to satisfy. How so?

An often-ignored, but critical, aspect of the disability accommodation process is the obligation by BOTH the employer and employee/applicant to engage in the interactive process. The interactive process under the FEHA is described as follows:

When needed to identify or implement an effective, reasonable accommodation for an employee or applicant with a disability, the FEHA requires a timely, good faith, interactive process between an employer or other covered entity and an applicant, employee, or the individual's representative, with a known physical or mental disability or medical condition. Cal. Code Regs. Title 2, Section 11069(b).

“Interactive” is the key term here, as the employer and employee are obligated to directly communicate and engage in a dialogue addressing the specifics of the employee’s needs and their job duties. “Both the employer [and the] employee…shall exchange essential information …without delay or obstruction of the process.” Id. The Regulations indicate that if the employer agrees to grant the specific accommodation initially requested by the employee, then no further interactive process is required at that point and the parties may simply move forward with the accommodation. However, where the employer does not agree to the employee’s initial accommodation request with unqualified acceptance (and essentially rejects the request), the interactive process obligations are triggered and the employer is obligated to “initiate discussion with the applicant or employee regarding alternative accommodations.” Id. at Section 11069(c)(1). The Regulations provide specific guidance on what constitutes notice to the employer of the need for an accommodation triggering the need to engage in the interactive process, and what type of information may be required by the employer in order to evaluate potential accommodations.

The lesser awareness by California employers of their obligations to engage in the interactive process has contributed to the proliferation of failure to engage claims, and now a separate failure to engage cause of action is routinely appended to disability discrimination and failure to accommodate claims. Indeed, failure to engage in the process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation. “It is an unlawful employment practice…[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” Government Code Section 12940(n). Although there is not an extensive amount of California case law specifically addressing the interactive obligations of employers and employees, some interesting developments have evolved through a line of California Court of Appeals decisions that provide valuable guidance for employers regarding an obligation that is often overlooked.

Once such development has been a split of authority over whether the plaintiff must prove that no reasonable accommodation was available in order to prevail in a claim for failure to engage. Generally, In order to prevail in a claim for failure to engage in the interactive process, the plaintiff must prove the following elements: the employee-plaintiff (or applicant) had a covered disability that was known to the employer-defendant (or was regarded as being disabled); the plaintiff requested from the defendant a reasonable accommodation so that the plaintiff would be able to perform the essential job requirements; the plaintiff was willing to participate in an interactive process to determine whether reasonable accommodation could be made so that they would be able to perform the essential job requirements; the defendant failed to participate in a timely good-faith interactive process with the plaintiff to determine whether reasonable accommodation could be made; that the plaintiff was harmed; and, the defendant’s failure to engage in a good-faith interactive process was a substantial factor in causing the plaintiff’s harm.

However, some courts have also added another required element to such a claim: that the defendant could have made a reasonable accommodation when the interactive process should have taken place. This additional element requires the parties to explore, and likely speculate, about any reasonable accommodations that were available back when the interactive process should have taken place. Many factors can play into the existence and reasonableness of accommodations at any given time, including work loads, staffing levels, scheduling issues, available equipment/assistive aids, and business conditions, which may not be easily recreated or analyzed months or years after the fact. California appellate courts have grappled with rationale of this challenging element.

Conflicting cases

In Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, the Second Appellate District of the Court of Appeal rejected this additional element for proving failure to engage in the interactive process, raising the circular dilemma that a plaintiff may not be able to prove the availability of a reasonable accommodation if the interactive process did not happen in the first place. “An employer may claim there was no available reasonable accommodation. But if it did not engage in a good faith interactive process, ‘it cannot be known whether an alternate job would have been found.’ [Citation.] The interactive process determines which accommodation is required. [Citations.] Indeed, the interactive process could reveal solutions that neither party envisioned.” Id. at 425. Because an employee does not have full access to information concerning possible accommodations, the employer could limit its own liability by withholding information that could lead to a reasonable accommodation. Id. Therefore, the Wysinger Court found it unfair to impose this additional showing on a plaintiff, when the employer’s failure to have met its interactive process obligations would undermine the plaintiff’s ability to prove this element in the first place.

However, the following year, in Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, the First Appellate District of the Court of Appeal, disagreed with the Wysinger court and concluded, “the availability of a reasonable accommodation (i.e., a modification or adjustment to the workplace that enables an employee to perform the essential functions of the position held or desired) is necessary to a section 12940[, subdivision ](n) claim.” The Court cited federal cases under the Americans with Disabilities Act requiring the plaintiff to show that a reasonable accommodation was available, and concluded the Legislature intended section 12940(n) to be interpreted in the same manner. Id. at 980–981. The Nadaf-Rahrov Court differed from Wysinger’s rationale of the interrelation between the duties to provide reasonable accommodation and to engage in the interactive process:

If a failure to provide accommodations is a consequence of a section 12940(n) violation, we see no reason why a plaintiff could not recover damages for that failure to accommodate, even if the plaintiff prevailed only on a section 12940(n) claim. Such a construction does not, as Wysinger states, render section 12940(n) superfluous. Section 12940(m) applies even without a showing that the employer failed to engage in the interactive process. Where a necessary accommodation is obvious, where the employee requests a specific and available reasonable accommodation that the employer fails to provide, or where an employer participates in a good faith interactive process and identifies a reasonable accommodation but fails to provide it, a plaintiff may sue under section 12940(m). Section 12940(n), which requires proof of failure to engage in the interactive process, is the appropriate cause of action where the employee is unable to identify a specific, available reasonable accommodation while in the workplace and the employer fails to engage in a good faith interactive process to help identify one, but the employee is able to identify a specific, available reasonable accommodation through the litigation process. In short, the two causes of action address different factual circumstances.” Id. at 984.

Both Wysinger and Nadaf-Rahrov cited the Third District Court of Appeal’s decision in Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, each interpreting Claudio as consistent with their respective holdings. Specifically, Wysinger cited Claudio as supporting the proposition that evidence showing no alternate jobs were available for the employee did not preclude recovery for failure to engage in the interactive process. (Wysinger, supra, 157 Cal.App.4th at 426.) But Nadaf-Rahrov asserted that Claudio was not inconsistent with its interpretation of section 12940(n) because that decision suggested it might become apparent later in the litigation that the interactive process was futile because no reasonable accommodation would have been available and that the employer then would not be held liable for failing to engage in a futile interactive process. Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 983.

Attempts to reconcile and merge Wysinger and Nadaf-Rahrov

The Fourth Appellate District in Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986 sought to reconcile and find common ground between Wysinger, Nadaf-Rahrov and Claudio. In Scotch, a reasonable accommodation was offered, but the employer failed to fulfill its promise to continue the interactive process and adverse employment action was taken after the initial accommodation was offered. The Scotch court noted that this situation differed from Wysinger and Claudio because in those other cases, the employer failed to engage in the interactive process altogether by failing to communicate about potential reasonable accommodations with the employee. Despite these factual differences, the Scotch court noted that “[a]ll three cases recognize the employee does not have the same access to information as the employer and therefore the interactive process is important in determining what accommodations are available.” Id. at 1018. Accordingly, the Court set forth its standard in reconciling these prior cases:

We synthesize Wysinger, Nadaf-Rahrov, and Claudio with our analysis of the law as follows: To prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because ‘ “ ‘[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have. . . .’ ” ’ However, as the Nadaf-Rahrov court explained, once the parties have engaged in the litigation process, to prevail, the employee must be able to identify an available accommodation the interactive process should have produced: ‘Section 12940[, subdivision](n),which requires proof of failure to engage in the interactive process, is the appropriate cause of action where the employee is unable to identify a specific, available reasonable accommodation while in the workplace and the employer fails to engage in a good faith interactive process to help identify one, but the employee is able to identify a specific, available reasonable accommodation through the litigation process.’ ”

Id. at 1018-1019. As such, the Scotch court found the discovery and litigation process would bring to light any reasonable accommodation options that would have been available at the time that the interactive process should have occurred, which would enable the plaintiff to prove this additional element that a reasonable accommodation was available.

More recently, the Second Appellate District revisited the issue of whether a plaintiff must prove that a reasonable accommodation was available at the time the failure to engage in the interactive process occurred. In Shirvanyan v. L.A. Community College Dist. (2020) 59 Cal App.5th 82, the plaintiff, who was a food service worker, developed carpal tunnel syndrome, as well as a shoulder injury. Although her supervisors were aware of her carpal tunnel syndrome and her difficulties performing her job, they never discussed changing her kitchen duties or providing time off to address the injury in her wrist. The plaintiff eventually went on medical leave, and after submitting a doctor’s note indicating she would be on leave for a specified time, there were no communications between her and the defendant. Her doctor continued to keep her off work as disabled from her shoulder injury, even to the time of trial. The jury rejected plaintiff’s disability discrimination claim but found in her favor on her reasonable accommodation and interactive process claims. The defendant moved for a judgment notwithstanding the verdict on multiple grounds, including that the evidence presented did not support the availability of a reasonable accommodation during the relevant time frame. The trial court rejected this argument, based on its view that the availability of a reasonable accommodation is not an element of an interactive process claim. Id. at 95.

The Court followed the Scotch holding and confirmed that in order to succeed on a claim for failure to engage in an interactive process, the plaintiff must establish that a reasonable accommodation was available at the time the interactive process would have occurred. However, the Court determined that sufficient evidence did not support the jury's verdict on the plaintiff’s failure to accommodate and interactive process claims to the extent those claims pertained to her shoulder injury because the shoulder injury totally disabled her even up to the time of trial, the employer had accepted and provided the employee’s request for the accommodation (i.e., temporary medical leave), and engaging in the interactive process would not have benefitted the employee. However, as there was evidence that there was a reasonable accommodation available for the plaintiff’s earlier wrist injury, which was a short-term leave of absence, the case was remanded for a determination of the extent of damages for that portion of the original case.

As such, for now it appears that the appellate court trend in California is to require a plaintiff to prove that a reasonable accommodation was available for a failure to engage claim, with the assumption that such a showing would be aided in the litigation process when the issue can be explored in-depth through discovery. With this in mind, documentation is more important than ever and employers would be well-served to prepare contemporaneous documentation that demonstrates not only that they are actively participating in the interactive process and communicating with the employee, but also the current circumstances that affect the availability and reasonableness of potential accommodations. If the employer can demonstrate that a reasonable accommodation was not available, regardless of whether they have proof of having engaged in the interactive process, they can successfully defend against an interactive process claim.

Although these Court of Appeal decisions acknowledge that claims for failure to engage in the interactive process under Government Code 12940(n) are separate and distinct claims from failure to accommodate claims under Government Code Section 12940(m), the decisions also illustrate the murky interdependence between the two duties. Indeed, the interactive process develops and reveals the reasonable accommodations available, and the existence of reasonable accommodations are a necessary element of a failure to engage claim. Employers must approach these separate duties as inextricably linked or else they risk failing on both.