Disability Discrimination, Failure to Engage in the Interactive Process,
Failure to Provide a Reasonable Accommodation
Employers cannot take an adverse action against an employee because of their disability. Under California law, a disability is a physical or mental disability or medical condition that limits a major life activity. Under federal law, a disability is a condition that substantially limits a major life activity. Major life activities include breathing, sleeping, walking, working.
In order to have a disability discrimination claim:
(1) an employee must be employed by a covered employer (an employer with 5 or more employees) or must have applied to work with the covered employer;
(2) the employer must have known that the employee had a condition that limited a major life activity;
(3) the employee or applicant must have been able to perform the essential duties of the position either with or without a reasonable accommodation;
(4) the employer took an adverse action against the employee (an adverse action can be not hiring an applicant or firing an employee;
(5) the applicant or employee's condition that limited a major life activity was a substantial motivating reason for the employer's adverse action;
(6) the applicant or employee was harmed;
(7) the employer's adverse action was a substantial factor in causing the applicant or employee's harm.
An example of disability discrimination can be: a 6-year employee develops cancer which requires her to take days off to attend chemotherapy sessions. The employer knows about the cancer because the employee notified the employer he developed cancer. The employer does not like that the employee is taking so many days off. The company is a large company however, and it can easily hire a temporary employee to fill in for the disabled employee on his days off. But it does not want to do that. The company terminates the employee for taking too many days off.
Failure to Engage in the Interactive Process
Employers must engage in a good faith interactive process to determine if there are is a reasonable accommodation that can allow the employee to perform the essential functions of his job.
The employee must request a reasonable accommodation from the employer, unless the disability is obvious.
The employer must then engage in conversations with the employee in attempts to find accommodations that will allow the employee to perform his essential job functions.
The employee must continue to engage in the process as well. Both the employer and employee must keep the lines of communication open. Neither can obstruct the process. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971–972).
An example of an employer's failure to engage in the interactive process could be: if after the employee with cancer in our example above takes a few days of leave and her doctor provides a doctor's note stating that she needs one month of additional leave, after which she should be done with her cancer treatment. The company terminates the employee, without requesting clarification from the employee or even engaging in any conversation with the employee.
Failure to Provide Reasonable Accommodation
An employer must provide a reasonable accommodation that will allow a disabled employee to perform the essential functions of his position or those of a similar vacant position to a disabled employee if doing so does not cause the employer an undue hardship.
A reasonable accommodation can be light duty, time off to recover, being transferred to a different position, or not carrying items that weigh over a certain amount of pounds.
An example of an employer failing to provide a reasonable accommodation could be the company failing to provide the employee with cancer in the example above with a month of leave when doing so does not cause the company an undue hardship because the company is large and profitable enough to hire a temporary worker in the cancer employee's absence.
Whether a hardship is an undue hardship is determined by looking at factors such as the company's size and resources, the nature of the accommodation and how much it would cost, the number of operations the company has, and the company's ability to pay for the accommodation. (Gov't Code section 12926(u)).