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self-study / Elimination of Bias

The Interactive Process in Disability Accommodation

California's Fair Employment and Housing Act ("FEHA," Cal. Gov't Code §§ 12940, et seq.) prohibits employment discrimination on several grounds including bias based on an employee's "physical disability, mental disability [and] medical condition...." (Cal. Gov. Code § 12940(a).) This is California's analog of the federal Americans with Disabilities Act ("ADA," 42 U.S.C. §§ 12101, et seq.).

The Need to Accommodate*
Among many other important statutory protections, both the FEHA and the ADA require that employers provide "reasonable accommodations" to employees who, because of their disability or medical condition, are temporarily unable to perform the "essential functions" of their job. (Cal. Gov. Code § 12940(m).)

A related duty of the employer is the obligation to "engage in the interactive process" with the employee once the need for an accommodation arises. (Cal. Gov. Code § 12940(n).) The interactive process is a key mechanism in the overall accommodations process under both the FEHA and the ADA. Its goal is to determine whether the disabled employee in question can perform the essential functions of his or her job with or without an accommodation. In other words, can the employee and employer--working together--figure out a way for the employment relationship to continue with the employee's present physical or mental condition. As explained below, the interactive dialogue envisioned by the statutory scheme is an essential part of how employers and employees implement reasonable accommodations in the workplace.

The interactive process may take hours, days, weeks, or even months. It is an ongoing responsibility, meaning that if the employee's accommodation becomes unworkable, both the employer and the employee need to go back to the drawing board to figure out whether an alternative accommodation is possible.

Failure to engage in the interactive process is a standalone cause of action under the FEHA, but not the ADA. ([Gov.C. § 12940(n); see Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971.) As a result of the close relationship between engaging in the interactive process and providing an accommodation, almost every single failure to accommodate claim in California also includes a claim for failure to engage in the interactive process.

Interactive Requirements
Under both the ADA and the FEHA, "the interactive process requires communication and good faith exploration of possible accommodations between employers and individual employees. That shared goal is to identify an accommodation that allows the employee to perform the job effectively. Both sides must communicate directly, exchange essential information." (Barnett v. U.S. Air, Inc. 228 F. 3d 1105, 1114-1115 (9th Cir. 2000), revd. on other grounds U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002).) EEOC guidelines on the interactive process (incorporated into the FEHA, see Cal. Gov't Code § 12926(1)(e)) offer more specific guidance. The parties must:
•Analyze the particular job involved and determine its purpose and essential functions;
•Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation;
•In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position, and;
•Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

(See 29 C.F.R. pt. 1630, App. § 1630.9).

Conceptually, the requirements are straightforward. The nub is this: the interactive process is used to determine what reasonable accommodations the employee needs in order to keep his or her job. In practice, however, each step along the way includes particular legal requirements and thus poses potential areas for dispute. Let's examine them in turn.

Step 1: Notice or Knowledge
Ideally, the disabled employee simply notifies the employer that he or she has work limitations resulting from a disability. This triggers the interactive process obligation. Notification does not need to follow any technical requirements, and the employee does not need to utter any "magic words." (See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1171-1172 (10th Cir. 1999), analyzing analogous procedures under the ADA.) Nor is an employer necessarily entitled to the diagnosis or other specifics about the medical condition or disability. (2 Cal. Code Regs., tit. 2 § 11069(d)(1).) All that is required is knowledge of functional work limitations. (Ibid.)

In some cases, the employee does not need to ask for an accommodation at all. Where the employer has knowledge of an employee's disability and possible accommodation needs, the employer may be required to initiate the interactive process even absent a request from the employee. (Norris v. Allied-Sysco Food Services, 948 F.Supp. 1419, 1436 (N.D.Cal.1996) ["if an employee's disability and the need to accommodate it are obvious, an employee is not required to expressly request reasonable accommodation"].) Knowledge can also be imputed from third parties (such as doctors) or the employer's own observations. (2 Cal. Code Regs., tit. 2 § 11069(b).) An employer's obligation is also triggered if an employee exhausts leave under other applicable statutes, such as worker's compensation, the FMLA, or the CFRA, and the employee's health care provider indicates further accommodations are necessary. (Ibid.)

Step 2: Dialogue & Good Faith Cooperation
Once the process begins, it is incumbent on both the employer and the employee to engage in the interactive process "in good faith" to identify reasonable accommodations. (2 Cal. Code Regs., tit. 2 § 11069(c)&(d).) The employer should either grant the requested accommodations, or reject them if they are too burdensome. If the employer rejects the employee's requested accommodations, the employer must "initiate discussion regarding alternative accommodations." (2 Cal. Code Regs., tit 2 § 11069(c).)

The employee must also "cooperate in good faith" and provide "reasonable medical documentation" identifying the existence of the disability and the related work restrictions, if requested. (2 Cal. Code Regs., tit 2 § 11069(d).) If alternate positions are part of the conversation, the employee may be required to provide "information about his or her educational qualifications and work experience that may help the employer or other covered entity find a suitable alternative position..." (Ibid.) Under very limited circumstances--for instance, where an employee's medical provider is not qualified to confirm the need for particular reasonable accommodations--an employee may be required to go to a health care provider of the employer's choice. (2 Cal. Code Regs., tit. 2 § 11069(d)(5)(C).)

Step 3: Providing Accommodation
In most cases, an employer's duty to engage in the interactive process ends once the employer provides a reasonable accommodation. The interactive process ideally terminates when the employer "implement[s] an accommodation that is effective in allowing the applicant or employee to perform the essential functions of the job." (2 Cal.Code Regs. tit 2 § 11069(c)(8); see also Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at 228.)

In practice, the interactive process may not have such a neatly defined end-point. The interactive process obligation is an ongoing one, and it continues "where the employer is aware that the initial accommodation is failing and further accommodation is needed." (Humphrey v. Memorial Hospitals Association, 239 F.3d 1128, 1138 (9th Cir. 2001).) Normally it is incumbent on the employee to alert the employer for the need for different accommodations, if the original ones are not working. (Spitzer v. The Good Guys, Inc., 80 Cal.App.4th 1376, 1384-1385 (2000).)

What Is a "Reasonable Accommodation?"
Although failure to accommodate is a stand-alone cause of action, defining a "reasonable accommodation" is always important to consider during the interactive process. There is no cookie cutter approach to the interactive process, since the ADA and the FEHA mandate an "individualized assessment" of each employee's work restrictions. (Albertson's, Inc. v. Kirkingburg 527 US 555 (1999).) The ADA and the FEHA do not specify what accommodations are or are not reasonable. California's FEHA and its accompanying regulations provide a non-exhaustive list of possible accommodations, largely in line with ADA case law:
•Making facilities readily accessible to and usable by disabled individuals (e.g., providing accessible break rooms, restrooms, training rooms or reserved parking places, acquiring or modifying furniture, equipment or devises or other similar adjustments);
•Job restructuring;
•Offering part-time or modified work schedules;
•Reassigning to a vacant position;
•Acquiring or modifying equipment or devices;
•Adjusting or modifying examinations, training materials or policies;
•Providing qualified readers or interpreters;
•Allowing assistive animals on the worksite
•Altering when and/or how an essential function is performed;
•Modifying supervisory methods;
•Providing additional training;
•Permitting an employee to work from home;
•Providing paid or unpaid leave for treatment and recovery;
•"(O)ther similar accommodations for individuals with disabilities."

See Cal. Gov't Code § 12926(p); Cal. Code Regs., tit. 2, § 11065(p)(2).)

Who Decides What's Reasonable?
Absent evidence of undue hardship, employers under the FEHA and the ADA should give preference to the employee's requested accommodations. (See Dutton v. Johnson County Board of County Commissioners, 859 F.Supp. 498, 507 (D. Kan. 1994).) That being said, employers have the final say in what accommodations are provided, and they are not necessarily required to defer to doctor recommendations, nor must they choose the "most reasonable" accommodation. (Soldinger v. Northwest Airlines, Inc. 51 Cal.App.4th 345, 370 (1996).) The primary requirement is that their choice be reasonable based on the employee's individualized circumstances, and made in good faith. The employer "has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide." (Hanson v. Lucky Stores, Inc., 74 Cal.Ap.4th 215, 228 (1999).)

Employers sometimes run into problems when they fail to implement any requested accommodations, based solely on unworkable accommodation requests from the employee or his or her medical professional. This is a potential area of liability for employers, because their obligation is not fulfilled by simply giving a yes or no vote to an employee's requests. "As long as a reasonable accommodation is available to the employer that could have plausibly enabled a handicapped employee to adequately perform his job, an employer is liable for failing to attempt that accommodation." (Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at 226.) As one California appellate court put it, it is not the employer's duty to "slavishly defer" to the recommendations of doctors or employees. (See Gelfo v. Lockheed Martin Corp. 140 Cal.App.4th 34, 46 fn. 11 (2006)("Also under FEHA, as under the ADA, 'an employer cannot slavishly defer to a physician's opinion without first pausing to assess the objective reasonableness of the physician's conclusions.'").)

What if There Is No Reasonable Accommodation?
The interactive process may also end if no reasonable accommodation is possible. Both the ADA and the FEHA require provision of reasonable accommodations unless such accommodations constitute an "undue hardship." (42 USC § 12112(b)(5)(A); Cal. Gov't Code § 12940(m).) Under the FEHA an undue hardship is "an action requiring significant difficulty or expense." (Cal. Gov't Code § 12926(u).) Factors to consider under both the ADA and the FEHA include (1) the nature and cost of the accommodation; (2) the overall financial resources of the facilities, and the effect the accommodation may have on operations at that facility, including other employees at that facility; (3) overall resources of the employer; (4) the type of operations of the employer entity, including the composition, structure and functions of its workforce; and (5) geographic separateness and administrative or fiscal relationship of the facility or facilities involved. Proving an undue hardship is the employer's burden. (Sargent v. Litton Systems, Inc. 841 F.Supp. 956, 962 (N.D. Cal. 1994).)

Current Issues
A current grey area in the law is whether an employee must prove that a reasonable accommodation was possible in order to win a failure to engage in the interactive process claim. Under the ADA it is the employee's burden to prove an accommodation was possible, and there is no standalone cause of action for failure to engage in the interactive process.

In contrast, in California there is a split of authority on this issue. Some courts have followed the federal standard, holding an employee must prove that a reasonable accommodation was possible in order to succeed on a failure to engage in the interactive process claim. (See Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal.App.4th 952, 981-982 (2008).)

Even so, other California decisions have held that since the FEHA (unlike the ADA) has an independent cause of action for failure to engage in the interactive process, it makes no sense to follow ADA decisions requiring proof of a potential reasonable accommodation. (See Wysinger v. Automobile Club of So. Calif., 157 Cal.App.4th 413, 425 (2007).) In Wysinger, the court noted that the purpose of the interactive process statute may be frustrated by requiring proof of a potential accommodation. The court observed that "[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have." This means employers "who violate [their duty to engage in the interactive process] by withholding information that could lead to a reasonable accommodation could avoid liability for [failure to accommodate a disability]." (Ibid.)

In other words, employers who prematurely end the interactive process deny the employee potentially important information about whether there was actually any possible reasonable accommodation. (See also Claudio v. Regents of Univ. of Calif., 134 Cal.App.4th 224, 245 (2005) [since employer failed to engage in the interactive process "it cannot be known whether an alternate job would have been found"].)

Future Developments
In California, the Department of Fair Employment and Housing regularly promulgates new regulations implementing the FEHA. For example, the DFEH recently issued new regulations, effective April 1, 2016, requiring employers of five or more employees to create detailed written policies for preventing harassment, discrimination, and retaliation. (2 Cal.Code Regs. tit 2 § 11023.) These new rules are in addition to regulations already requiring training, prevention, and enforcement of internal harassment prevention policies.

On the federal level, the Equal Employment Opportunity Commission (EEOC), is the agency tasked with enforcing, among other things, the ADA. The EEOC also has rulemaking authority and regularly updates its rules. It is incumbent on employers to stay abreast of updates in the FEHA and the ADA. Not only is compliance mandatory, but more importantly, these statutes embody vital protections for employees and are essential to maintaining a healthy and productive workforce.

Conclusion
Every step in the interactive process is a potential minefield for litigation. Whether the employer knew the employee needed accommodations, whether the employer or the employee sufficiently "engaged" in the interactive process in a timely manner and in good faith, whether the provided accommodations were "reasonable," and whether the employer failed to continue a dialogue following a change in circumstances are all frequently disputed "issues of fact" in FEHA lawsuits.

Ramsey Hanafi is a partner at Quintana Hanafi LLP in San Francisco. His practice focuses on representing workers in employment disputes in both individual and class action cases

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