The California Fair Employment and Housing Act (“FEHA”) requires employers to reasonably accommodate their employees’ known disabilities and to engage in a “timely, good faith, interactive process” in order to determine effective reasonable accommodations. Government Code section 12940, subd. (m), (n). “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. . . . Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.” Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 (citing Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 266, rehearing denied, review denied; Prillman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954). “While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” Id. “The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192 (citing Jensen, supra, 85 Cal.App.4th at 256).
Employers who are aware of an employee’s disability have an affirmative obligation to make reasonable accommodations for such disability. Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 949–950. This duty arises even if the employee has not formally requested any accommodation. Id.at 954. In Prilliman, plaintiffs were pilots who had been grounded by the FAA after testing positive for HIV/AIDS. Id. at 942. United Airlines knew of the pilots’ disability, but the pilots did not formally request any accommodation. Id. The California Court of Appeal held that the statute did not require the plaintiffs “to speak any magic words” or mention accommodation in order to state a disability claim under the FEHA. Id. at 954. See also Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at 62 fn. 22 (“Although it is the employee’s burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation.”).
Gov. Code § 12926(l) defines “physical disability” as including, but not limited to “having any physiological disease, disorder, [or] condition . . . that . . . affects one or more of the following body systems: neurological, immunological, musculoskeletal . . . [and] digestive [and] limits a major life activity.” “Limits a major life activity” just means that it is “difficult to achieve” the major life activity. Id. at subd. (B)(ii). “’Major life activities’ shall be broadly construed and includes physical, mental, and social activities and working.” Id. at subd. (B)(iii).
Government Code § 12940(a) prohibits discrimination on the basis of an employee’s disability. Government Code § 12926.1(c) emphasizes that “disability” is to be broadly construed, in contrast to the federal Americans with Disabilities Act:
[T]he Legislature has determined that the definitions of “physical disability” and “mental disability” under the law of this state require a “limitation” upon a major life activity, but do not require, as does the federal Americans with Disabilities Act of 1990, a “substantial limitation.” This distinction is intended to result in broader coverage under the law of this state than under that federal act. Under the law of this state, whether a condition limits a major life activity shall be determined without respect to any mitigating measures, unless the mitigating measure itself limits a major life activity, regardless of federal law under the Americans with Disabilities Act of 1990. Further, under the law of this state, “working” is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments.
A condition does not have to be permanent or chronic in order to qualify as a disability under the FEHA. Rather, a condition can qualify as a disability even if it is only temporary. See, e.g., Diaz v. Fed. Express Corp. (C.D. Cal. 2005) 373 F.Supp.2d 1034, 1048–53 (rejecting contention that temporary condition was not a disability as a matter of law); Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1340 (finding “[b]eing unable to work during pregnancy,” a temporary condition, to be a disability under FEHA). Severe pain can be considered a disability under the FEHA subject to an individualized assessment of how the condition affects that specific employee. Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 348; see also Huck v. Kone, (N.D.Cal. 2011) No. C 10–01845, 2011 WL 6294466, 5 (holding that plaintiff’s doctor’s note, which mandated a leave of absence for severe arm pain, satisfied the FEHA disability requirement).
It is well established that permitting an employee to take sick leave is a reasonable accommodation, provided it is likely that the employee will be able to perform his job at the end of the leave. Wilson, supra, 169 Cal.App.4th at 1193–1194; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 (citing Kimbro v. Atlantic Richfield Co. (9th Cir. 1989) 889 F.2d 869, 878–879); Jensen, supra, 85 Cal.App.4th at 263; Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 244; Sanchez v. Swissport, Inc., supra, 213 Cal.App.4th at 1341 (“A finite leave of greater than four months may be a reasonable accommodation for a known disability under the FEHA.”)
Again, controlling case law has reiterated that “no magic words are necessary” to notify the employer of a disability. Prilliman v. United Air Lines, Inc., supra, 53 Cal.App.4th at 954; Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at 62 fn. 22. All that is required is for an employee to provide some evidence of disabling symptoms in order to put the employer on notice.
Author: Richard Hoyer
Category: Arbitration, Legal Procedure, Workplace Discrimination
Tags: #Americans with Disabilities Act #California #Claudio v. Regents of University of California #Diaz v. Fed. Express Corp. #Disability Accommodations #Employment Law #Fair Employment and Housing Act #FEHA #Gelfo v. Lockheed Martin Corp. #Gov. Code § 12926 (l) #Gov. Code § 12926.1 (c) #Gov. Code § 12940 #Gov. Code § 12940 (a) #Gov. Code § 12940 (m) #Gov. Code § 12940 (n) #Hanson v. Lucky Stores Inc. #Huck v. Kone #Jensen v. Wells Fargo Bank #Prillman v. United Air Lines Inc. #Sanchez v. Swissport Inc. #Wilson v. County of Orange