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Employee Need Not Be A “Qualified Individual With A Disability” To Claim Failure To Reasonably Accommodate

By Andrew B. Kaplan, Esq.

Employers around the nation have had reason to celebrate in recent months, as the federal courts have continuously and consistently limited the reach of the protections afforded to employees under the Americans with Disabilities Act (“ADA”), but not California employers. Recent California legislation and legal decisions have forced employers to be extremely cautious when it comes to dealing with disabled employees. For example, in 2000, the legislature declared that under the California Fair Employment and Housing Act (“FEHA”), employees need only show that a physical or mental impairment actually or potentially makes achievement of a major life activity “difficult.” This standard is far more encompassing than the federal ADA requirement of “substantial limitation” upon a major life activity. We have also known for some time that what constitutes a “major life activity” under FEHA is much broader than under the ADA. The legislature added language to FEHA in 2000 regarding the duty of an employer to engage in an interactive process with a disabled employee in order to determine a reasonable accommodation for the disabled employee.

The ADA now requires that employers engage in an interactive process with employees to determine an appropriate accommodation. In some cases, courts have held that state laws analogous to the ADA create a similar requirement. See, for example, Davis v. Microsoft, 37 P.3d 333 (Wash. Ct. App. 2002), interpreting Washington Law Against Discrimination; Jones v. Aluminum Shapes, Inc., 772 A.2d 34 (N.J. Super. Ct. App. Div. 2001), applying New Jersey law Against Discrimination. However, in Sullivan v. Raytheon, 262 F.3d 41 (1st Cir. 2001), a Massachusetts court found that its state anti-discrimination law did not require employers to engage in an interactive process.

Bagatti v. Dept. of Rehabilitation

The California Court of Appeal decided to make things even tougher for employers with its decision Bagatti v. Dept. of Rehabilitation. There, an employee who had polio sued her employer, the Department of Rehabilitation, under FEHA for failure to provide her with reasonable accommodation. Bagatti claimed that she was injured at work because the Department had failed to adequately respond to her requests to reasonably accommodate her. The employer argued that because Bagatti had not shown that she was a qualified individual with a disability who suffered an adverse employment action because of her disability — required under the ADA — her claim failed as a matter of law. The lower court agreed and entered judgment for the Department.

The appeals court disagreed, stating that FEHA “does not require that an employee be ‘a qualified individual with a disability’ as does the federal statute. Rather, FEHA applies simply to ‘an applicant or employee.’ Moreover, FEHA does not link the failure to make reasonable accommodation to discrimination in the terms and conditions of employment as does the ADA statute.” Thus, “unlike the federal ADA statutes, FEHA does not require that reasonable accommodation for a disability be made only where the person is a qualified individual able to perform the essential functions of the job…, nor is there any requirement in FEHA that the employee has the right to assert the duty of reasonable accommodation only where some kind of adverse employment action is taken against the employee.”

Effect of Bagatti

This decision has just increased the confusion over when the employer’s duty to reasonably accommodate arises. After Bagatti, not only is the definition of “a qualified individual with a disability” much broader under FEHA than under the ADA, but an employer’s duty to provide reasonable accommodation for an employee may be greater as well. Certainly Bagatti highlights the importance of employers engaging in an interactive process with any of its employees who may be disabled to determine possible accommodations.

But is the employer required to reasonably accommodate an employee even if the accommodation will not help the employee perform the essential functions of the job? The employee’s attorney would argue that the answer is yes because, under Bagatti, the employee does not have to be a qualified individual with a disability — that is, able to perform the essential functions of the job with or without reasonable accommodation — in order to state a claim against the employer for failure to reasonably accommodate.

Although the Bagatti court did recognize that its decision would leave employers with uncertainty regarding when they should provide reasonable accommodation to disabled employees, their solution was simply to urge the Fair Employment and Housing Commission to adopt regulations or standards to clarify this part of FEHA. But until and unless that happens, employers are left with very little guidance on the issue.

What To Do

Until somebody — the courts, legislature, or the Fair Employment and Housing Commission — chooses to provide us with that guidance, employers should, at a minimum, do the following:

• Ensure that all managers and supervisors are aware of and understand the duty to accommodate employees with disabilities.
• Always engage in good faith in an interactive process with any employee the employer suspects or knows to be disabled.
• Explore a variety of options for reasonably accommodating the disabled employee.
• Finally, check with competent legal counsel with any questions the employer may have. 

ABOUT THE AUTHOR

Andrew Kaplan is a management labor consultant with the employment law department of Silver & Freedman in Century City, California. His practice includes union avoidance, collective bargaining, client counseling, and litigation before both federal and state courts and administrative agencies. Mr. Kaplan can be reached at akaplan@silfre.com.

riskVue | The webzine for risk management professionals
August 2004