"FEHA Disability Provisions Violated Solely by Employer’s Failure to Engage in Interactive Process"

April 01, 2008
Federal and state law prohibit discrimination in employment on the basis of disability. Employers are also obligated to make "reasonable accommodation" that will allow an employee to perform the essential functions of his or her job. The California Fair Employment and Housing Act (FEHA) also requires an employer to engage in an "interactive process" to determine reasonable accommodations for an employee’s disability.

Now, in Wysinger v. Automobile Club of Southern California, the California Court of Appeal has determined that an employer may be liable for failure to engage in the interactive process even if it is not found liable for failing to provide a reasonable accommodation for the employee’s disability. The Court of Appeal held that these two claims require different elements of proof and therefore are not inconsistent.

Wysinger was the District Manager for the Auto Club’s Santa Barbara office. He had been with the club for 25 years and had received favorable performance evaluations. He suffered from lupus, a heart condition, and rheumatoid arthritis. His daily commute to Santa Barbara aggravated his arthritis and he wanted to become manager of the Auto Club’s Ventura office because this would involve a less arduous commute and would also constitute a promotion.

After the Auto Club announced a new compensation plan which would apparently result in decreased compensation for the Auto Club’s older managers, Wysinger and others announced their opposition. Wysinger eventually filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming that the Auto Club had engaged in age discrimination. The Auto Club then backed off from imposing the pay cuts.

After Wysinger filed the age discrimination claim, his work environment changed. He was no longer invited to joint management committees or to apply for management positions. He was treated coldly and ignored at management meetings and the Auto Club ignored his requests to accommodate his disabilities. He began receiving unfavorable job evaluations. When the Ventura management position became open, Wysinger applied and was recommended for the job by his immediate supervisor and by a Vice President who had previously indicated an intent to "crush" those managers who opposed the abandoned compensation plan. However, a Senior Vice President overrode the recommendation and gave the Ventura management position to another employee whose reputation for management skills was lesser than Wysinger’s and who had not even applied for the job.

Wysinger then sued the Auto Club on a number of theories. He alleged that the Auto Club had retaliated against him for filing the age discrimination claim. He also sued on a number of claims relating to disability. He alleged that he had been discriminated against because of disability, that the Auto Club had failed to provide a requested reasonable accommodation for his disability, and that the Auto Club had failed to engage in the interactive process regarding his disability.

The jury awarded Wysinger economic damages of $204,000, emotional distress damages of $80,000 and $1 million in punitive damages. The jury found that the Auto Club had violated FEHA by failing to go through the interactive process. However, the jury did not find that the Auto Club had discriminated against Wysinger by failing to provide reasonable accommodation.

On appeal, the Auto Club contended that the jury had reached contradictory findings by holding them responsible for failing to conduct the interactive process while at the same time finding that it had not discriminated against Wysinger based on disability. The Court disagreed:

Here the verdicts on the reasonable accommodation issue and the interactive process claim are not inconsistent. They involve separate causes of action and proof of different facts. Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. ‘An employee may file a civil action based on the employer’s failure to engage in the interactive process.’ Failure to engage in this process is a separate FEHA violation independent from the employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation. An employer may claim there were no available reasonable accommodations. But if it did not engage in a good faith interactive process, ‘it cannot be known whether an alternative job would have been found.’ The interactive process determines which accommodations are required. Indeed, the interactive process could reveal solutions that neither party envisioned.

Here the jury found that there was no failure to provide a required accommodation because the parties never reached the stage of deciding which accommodations were required. [The Auto Club] prevented this from happening by its refusal to engage in the interactive process.

The Court of Appeal noted that Wysinger had requested an accommodation involving his commute. There was evidence that the Auto Club had ignored his repeated requests to discuss his health and commute problems. Upper management did not respond to Wysinger’s letters concerning the difficulties occasioned by his heart and lupus conditions. When his health began to deteriorate, Wysinger made repeated requests to his immediate supervisor for some accommodation because of his health problems. The human resources department failed to respond to any of those requests. The situation did not change even after Wysinger’s physician wrote to the Auto Club about his health conditions. The Court noted that the evidence supported the jury’s findings that the Auto Club had refused to engage in an interactive process to discuss his disabilities and that it had acted with malice. The appeals court affirmed the judgment, including the one million dollar punitive damage award.

The appellate court approved a jury instruction that "the employer must explore various accommodations even if the employee has not requested any. . . .An employer. . . .who rejects the other’s proposed accommodations and offers no effective alternative fails to engage in good faith in the mandatory interactive process."

This court decision is quite significant. It is almost inevitable that at sometime in the future an employee will develop a health condition which may or may not impact the ability of that employee to perform the regular functions of the job. Because of the broad definition under California law, potentially every health condition will qualify as a "disability" and entitle the employee to protection under FEHA. Unless the employee’s physician provides a letter indicating that the employee cannot work even with accommodation, an employer should never make a decision that an employee cannot be allowed to return to work without first offering to engage in the "interactive process" required by FEHA. Then, the employer must make a good faith effort to find whatever "reasonable accommodations" are necessary and available to allow the employee to continue working. The scope of potential accommodations could range from job restructuring to offering the employee transfer to another position which he or she can perform, if they cannot perform their regular job. No employer should ever make assumptions about the ability of an employee to work. Employment decisions must be based on competent medical information and after the interactive process.

Litigation alleging employment discrimination based on disability has become very common in California under FEHA. The Wysinger case presents a very serious challenge to employers to comply fully with FEHA in order to avoid incurring liability.

This article was written by Jeffrey Freedman, an attorney with the labor and employment law firm of Liebert Cassidy Whitmore (LCW). Mr. Freedman is a Partner in the Los Angeles office and can be reached at (310) 981-2000 or at jfreedman@lcwlegal.com. For more information regarding the information above or our firm please visit our website at www.lcwlegal.com, or contact one of our offices below.

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