Recent Court Decision Clarifies an Employer’s Duty to Engage in the Interactive Process and Provide a Reasonable Accommodation to a Disabled Employee

May 27, 2009
Employee disability discrimination lawsuits continue to abound in California. For many employers, the duty to reasonably accommodate a disabled employee is a difficult and rather frustrating process. It is often times uncertain what is required under the law. A recent decision by the Court of Appeal, Scotch v. Art Institute of California-Orange County, Inc. (May 6, 2009), provides some guidance to employers regarding what duties they must undertake under the California Fair Employment and Housing Act ("FEHA") to engage in the interactive process and provide a reasonable accommodation for an employee’s disability. Below is a summary of Scotch and its impact on employers.

Background Information in Scotch

Carmine Scotch was a full-time instructor at the Art Institute of California-Orange County, and was HIV-positive. The Institute’s accreditation standards require that all faculty members hold a graduate degree, professional degree, or a bachelor’s degree with professional certification. Scotch lacked these educational credentials. In 2004, the Institute began preparing for its accreditation audits by informing faculty, including Scotch, that half of the faculty would have to obtain master’s degrees. The Institute offered to pay faculty members’ tuition for enrolling in master’s degree programs. Scotch never enrolled in a master’s degree program while employed at the Institute.

In mid 2006, Scotch received a poor performance review based in part on his lack of participation in professional development and failure to enroll in a master’s degree program. Scotch contested the poor evaluation, disclosing for the first time to human resources that he was HIV-positive, and therefore could not manage a master’s degree program on top of his regular job duties. The Institute suggested he enroll in a three-year rather than a two-year master’s program, and time spent on the program would count toward his professional development requirement and therefore would not increase his regular workload.

Around this same time in early 2006, the Institute experienced a sharp decline in enrollment, causing some instructors to be laid off. Several others were reduced from full-time to part-time status based on their failure to enroll in a master’s degree program, including Scotch. Ultimately, Scotch resigned and sued the Institute for, among other claims, failure to reasonably accommodate his disability and failure to engage in the interactive process. Both claims were brought under FEHA. The Institute filed a motion for summary judgment and indicated that there were not sufficient facts available to establish disability discrimination in violation of FEHA. The trial court granted summary judgment and ruled in favor of the Institute. Scotch appealed the decision.

An Employer’s Reasonable Accommodation Need Only Allow an Employee the Ability to Perform Essential Functions of the Job

FEHA requires an employer to "make reasonable accommodation for the known physical or mental disability of an applicant or employee." (Gov. Code § 12940(m).) FEHA defines the term "reasonable accommodation" only by example, and does not provide guidance as to whether a reasonable accommodation may require the employee to perform the essential functions of the job.

The Court of Appeal clarified that a reasonable accommodation means "a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired." This definition is consistent with the federal Equal Employment Opportunity Commission’s interpretive guidance on the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.).

Scotch argued that the Institute should have reasonably accommodated his disability by giving him priority in the assignment of courses to ensure he maintained full-time status. The court disagreed and held that this "amounted to a guarantee of full-time employment," an accommodation the Institute was not required to provide under FEHA. Scotch’s failure to enroll in a master’s degree program, not his disability, prevented the Institute from maintaining him at full-time status. Obtaining a master’s degree, or enrolling in a master’s degree program, was an essential function of maintaining Scotch’s job as an instructor at the Institute. As noted by the Court: "Scotch’s disqualification from teaching upper division courses did not stem from his disability, or failure to accommodate that disability, but rather from his not having a master’s degree or being enrolled in a master’s degree program."

Following this, the Court ruled that the Institute’s offer to extend his master’s degree program to three years and replace time spent on the program with the professional development requirement was a reasonable accommodation which would have allowed Scotch to perform the essential functions of his job:

An Employer’s Liability for Failing to Engage in the Interactive Process to Identify a Reasonable Accommodation is Only Established Where Such a Reasonable Accommodation Exists

FEHA also requires an employer to "engage in a timely, good faith, interactive process with the employee or applicant to make reasonable accommodations, if any"... (Gov. Code § 12940 (n)).

The Court recognized that an employee does not have the same access to information as the employer, and therefore the interactive process is important in determining what accommodations are available. As a result, the employee cannot be expected to identify and request all possible accommodations during the process itself. However, once the employee sues the employer for failure to engage in the interactive process, and the parties have gone through the litigation process, "the employee must be able to identify an available accommodation the interactive process should have produced."

The Court noted that FEHA is remedial in purpose, and an employee may not recover for damages that are unidentified. As a result, the Court held that an employer is not liable for failing to engage in the interactive process where, after litigation with full discovery, the employee fails to identify a reasonable accommodation that would have been objectively available during the interactive process. In this case, Scotch’s requested accommodation of priority class assignment was not a reasonable accommodation under FEHA. Furthermore, even after the litigation process, Scotch failed to identify a reasonable accommodation that the interactive process should have produced.


Scotch provides some good clarification employers can use in determining how to engage in the interactive process to reasonably accommodate an employee’s disability. First, the Court clarified that an employer’s reasonable accommodation need only provide a disabled employee with the ability to perform the essential functions of the job. Next, the Court noted that, when a disabled employee alleges that an employer failed to engage in the interactive process, the employee must eventually prove that a reasonable accommodation was available at the time the interactive process should have occurred.

However, Scotch does not address one very important aspect of an employer’s duty to engage in the interactive process with an employee regarding a disability - namely, the ability to verify the existence of the employee’s alleged disability and any resulting medical limitations. In Scotch, the only identification of a disability noted by the Court was Scotch’s self-admission that he was HIV-positive (which he is not required to disclose but voluntarily chose to do so). There are no facts presented to indicate that the Institute ever sought medical verification of any medical limitations he may have based on being HIV-positive that could affect his ability to perform his essential job functions. We strongly recommend that employers actively seek medical verification of an employee’s alleged disability and limitations as part of the interactive process to determine if a reasonable accommodation can be made. Confidentiality laws (e.g. California Medical Information Act - CMIA) may prevent employers from finding out an exact diagnosis of a medical condition, but they do not preclude employers from finding out the duration of the condition and any limitations on the ability of the employee to undertake their job duties.

As Scotch is an intermediate appellate court decision, it remains uncertain as to how other appellate courts or the California Supreme Court will apply the holdings of the case. Due to the evolving and complex state of the law regarding disability discrimination under state and federal laws, we advise employers to consult with legal counsel before implementing any employment decisions regarding an employee’s disability.

This article was written by Gage C. Dungy and Elizabeth A. Avedikian, attorneys with the labor and employment law firm of Liebert Cassidy Whitmore. Mr. Dungy ( and Ms. Avedikian ( are Associates in the Fresno office and can be reached at (559) 256-7800. For more information regarding the discussion above or on our firm please visit our website at, or contact one of our offices below.

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