Disability Discrimination And The Obligation To Provide Reasonable Accommodation: The Interactive Process

Under the Fair Employment and Housing Act (FEHA) and the Americans With Disabilities Act (ADA), an employer is liable for failure to reasonably accommodate the known or perceived disability of an employee.1 The elements of a failure to accommodate claim under the FEHA are: (1) plaintiff suffers from a disability covered by the FEHA; (2) plaintiff can perform the essential functions of the job with or without accommodation; and (3) defendant has failed to reasonably accommodate plaintiff's disability.2 FEHA also makes it an unlawful employment practice for an employer to fail to engage in a timely, good-faith, interactive process with the employee to determine effective reasonable accommodation, if any, in response to a request for accommodation by an employee.3 What is this interactive process and how can it be satisfied? The Legal Landscape FEHA defines "reasonable accommodation" only by way of example. The definition is virtually identical to the ADA's statutory definition of "reasonable accommodation," which is also by way of example. "Reasonable accommodation" is making existing facilities usable by individuals with disabilities; or job restructuring; part time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; adjustment or modification of examinations, training materials or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.4 An employer is required to reasonably accommodate an employee unless the employer can demonstrate that such an accommodation would result in undue hardship to the operation of the business. (Gov. Code §12940(m).) The failure to engage in a good-faith interactive process with an employee requesting accommodation is a separate wrong actionable under the FEHA. Many employers, mindful of the obligation to reasonably accommodate a qualified individual with a disability, nevertheless fail to engage in the interactive process. Specifically, under the FEHA, an employee may prevail on a claim for failure to engage in the interactive process without prevailing on a claim for failure to make reasonable accommodation.5 The interactive process requires communication and good-faith exploration of possible accommodations between employers and employees. The purpose is to jointly identify an accommodation that allows the employee to perform the essential functions of the job.6 The focus of this cause of action is on the failure to discuss, not the failure to accommodate. The elements of a cause of action for failure to engage in a good-faith interactive process to discuss reasonable accommodation are: (1) that the plaintiff had a condition/limitation that was known to the defendant; (2) that plaintiff requested that defendant make reasonable accommodation for his/her limitation/condition so that he/she would be able to perform the essential job requirements; (3) that plaintiff was willing to participate in an interactive process to determine whether reasonable accommodation could be made so that he/she would be able to perform the essential job requirements; (4) that defendant failed to participate in a timely good-faith interactive process to determine whether reasonable accommodation could be made; (5) that defendant's failure to engage in a good-faith interactive process was a substantial factor in causing plaintiff harm. (CACI No. 2546.) There is much confusion regarding what an employer is required to do to avoid liability for a failure to engage in the interactive process in good faith. Although the statutory prohibition makes unlawful an employer's failure to engage in the interactive...