One of the biggest sources of conflict between disabled employees and their employers is deciding whether to grant an employee a reasonable accommodation as required by the Americans with Disabilities Act (ADA) and the California Fair Housing and Employment Act (FEHA).
The interactive process is a shorthand way of describing the informal negotiations between an employer and employee in finding a reasonable under ADA and FEHA. This process is critically important because failure to engage in the interactive process can be a violation of disability law in and of itself.
Although there are no bright line guides for how the interactive process should proceed, the employer must take steps to ensure that the employer had notice of the existence of a reasonable accommodation.
Problems that can arise during the interactive process include when the communications between employer and employee come to an impasse or break down, the employer refuses to discuss options, or rejects accommodations without reason despite the proposal being clearly simple fixes and not constituting an undue hardship. In these situations an employer may become liable for failure to engage in the interactive process under California law.
For example, in Wysinger v. Automobile Club of Southern California (AAA) (2007) 157 Cal. App. 4th 413 an employee, Wysinger, suffered from lupus and rheumatoid arthritis. After his employer AAA instituted plans to reduce the pay of senior employees he filed an age discrimination claim and also a claim that the employer failed to reasonably accommodate his disabilities because it failed to discuss options in reducing his commute time. Wysinger had requested a transfer in order to reduce his commute time; however AAA rejected this and did not raise any other possibilities.
The California Court of Appeals found that AAA could not rely on its rejection of Wysinger’s suggestion and claim that Wysinger had the burden to request other reasonable accommodations because it is not up to an employee to request multiple types of accommodation that an employer may choose from. The court upheld that under FEHA failure to engage in the process can be a separate claim from failure to provide reasonable accommodations.
If your employer or former employer has failed to discuss reasonable accommodations with you after you told them you needed accommodation you may be entitled to damages. To learn more contact the experienced California Employment law attorneys of the Law Offices of Michael S. Cunningham, LLP. Schedule a free consultation by calling (951) 213-4786 today.