Finding the right accommodation for a disabled employee can be a difficult task under the Fair Employment and Housing Act (“FEHA”). An employer’s accommodation obligations are broad, and litigation can ensue when there is a breakdown in the accommodation process. Two recent appellate decisions involving public entities, however, provide employers with guidance on how to better approach an employee’s request for accommodation.
Where The Employer’s Accommodation Efforts Fall Short
In Swanson v. Morongo Unified School District (2014) 232 Cal. App.4th 954, as modified on denial of reh’g (Dec. 23, 2014), a teacher sued a public school district (“District”) alleging that her employment contract was not renewed because of her breast cancer and related medical leaves.
After the Plaintiff-teacher was diagnosed with cancer, the District afforded her a prolonged leave of absence to care for her condition. Upon her return from leave, the District and Plaintiff discussed an appropriate classroom assignment. The District recommended an assignment to a 5th grade class, while Plaintiff requested to teach the 2nd grade because she had taught that level before and was familiar with the curriculum.
Plaintiff expressed that she was concerned that her cancer treatments would inhibit her ability to prepare and plan lessons for a new assignment. The District ultimately assigned Plaintiff to teach kindergarten.
After another short medical leave and return to work, the District evaluated Plaintiff’s in-class instruction as part of its annual review of all teachers. Plaintiff’s performance was rated poor, and her contract was not renewed because of the unfavorable evaluation.
Plaintiff sued the District under FEHA, alleging that the District discriminated against and failed to accommodate her. Relying on Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222–1223, the trial court held that the District’s accommodation efforts were sufficient because the District had no obligation to choose either the best accommodation for Plaintiff or the specific accommodation that she sought. The Fourth Appellate District disagreed, however, holding that the law imposes an affirmative duty on employers to reassign a disabled employee to an already funded, vacant position at the same level. Swanson, supra, 232 Cal. App.4th at p. 970 (citing Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389). The Court found it significant that the 2nd grade position that Plaintiff requested was vacant at the time of her request. Moreover, the Court held that the District should have afforded Plaintiff preferential consideration when considering her request to teach the 2nd grade. Swanson, supra, 232 Cal. App.4th at p. 970 (citing Jensen v. Wells Fargo Bank (2000) 85 Cal. App.4th 245, 265).
Where The Employer’s Accommodation Efforts Are Sufficient
Contrary to the result in Swanson, the Second Appellate District affirmed summary judgment for an employer in Nealy v. City of Santa Monica (2015) 234 Cal. App.4th 359. Similar to Swanson, Nealy involved a lawsuit where the plaintiff alleged disability discrimination and failure to accommodate.
The employee in Nealy worked for the City of Santa Monica (“City”) as a solid waste equipment operator. After he endured an on-the-job knee injury, Plaintiff underwent multiple periods of disability and leaves of absence. Initially, the City reassigned Plaintiff to a groundskeeper position as an accommodation. After a second industrial injury, Plaintiff was returned to work on “light duty,” which restricted him from several physical activities, including kneeling and heavy lifting.
Pursuant to his restrictions, Plaintiff requested that the City return him to the solid waste equipment operator position with modifications to the job. The City conducted several meetings with Plaintiff and hired a disability consulting firm to determine whether Plaintiff could perform the essential functions of that role. The City concluded that Plaintiff’s restrictions precluded him from performing that job without eliminating certain essential functions. After initially declining to do so [slightly unclear as to what the City declined to do], the City considered reassigning Plaintiff to a lateral, vacant position. Plaintiff could not be reassigned, however, because he was not qualified for the lone lateral position that was available. Unable to find an accommodation for Plaintiff, the District effectively separated Plaintiff’s employment.
The Second Appellate District concluded that the City’s actions were lawful. Notably, the Court rejected Plaintiff’s argument that the City could have restructured his former position so that he would not have to kneel or lift heavy objects. Because kneeling and lifting heavy objects were essential functions of the job, the City was not required to eliminate those functions as an accommodation. Id. at p. 359. As to reassignment, the Court held that the law does not require employers to provide an indefinite leave of absence to await possible future vacancies. Id.
The Takeaway From Swanson And Nealy
The employers in Swanson and Nealy both denied the accommodation sought by the employee, but the respective courts notably reached opposite conclusions on their accommodation efforts. Although the District’s accommodation efforts in Swanson were not necessarily poor, summary judgment could not be affirmed in that case because the District did not have a viable reason for denying the teacher’s request for a 2nd grade assignment. That assignment was vacant and available, and the District did not give sufficient consideration to the teacher’s medical concerns.
By contrast, the City in Nealy had a well-reasoned basis to deny its employee’s reassignment request. The City hired a disability consulting firm to evaluate the employee’s essential job functions, communicated with the employee on multiple occasions to discuss the employee’s restrictions, and explored all lateral vacancies before deciding that the employee was not qualified for any vacant positions.
Employers who are contemplating an accommodation request should be mindful of the results in Swanson and Nealy. At a minimum, employers should (1) carefully evaluate the employee’s essential job functions in view of any work restrictions, and (2) communicate with the employee about the accommodations that are being explored and the alternatives available to the employee. It is important that employers afford their employees an opportunity to actively participate in the accommodation process. Employers should also consult with a medical professional or a disability consultant where feasible to find accommodations that are compatible with an employee’s work restrictions and limitations.
Although a perfect accommodation may not exist, closely mirroring the employer’s actions in Nealy will put employers in a better position to accommodate employees with disabilities and avoid litigation.
Andrew I. Chung, Associate at Pettit Kohn Ingrassia & Lutz, PC in LA.
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