The Fair Employment and Housing Act (FEHA) gives employers many responsibilities as to applicants and employees with disabilities. This case provides guidance on how these responsibilities function in the context of Police Academy training.
Five recruit officers in the City of Los Angeles Police Department had temporary injuries while in the Police Academy. The Department’s practice at the time was to assign injured recruits to light duty administrative positions until they recovered or became permanently disabled. The Department ended that practice, while these five recruits were in their light duty positions, by asking them to resign or face termination before they recovered or became permanently disabled.
The recruits sued, alleging various FEHA violations. A jury found, among other things, that the City discriminated against the recruits based on their physical disabilities and failed to reasonably accommodate their injuries. In total, the jury awarded the recruits over $12 million, including millions in future economic damages. The City appealed.
The City focused on the police recruit job duties and argued that the FEHA does not protect employees with a disability who are unable to perform their essential job functions even with a reasonable accommodation. The recruits argued that because they could perform the essential functions of their light duty administrative positions, FEHA covered their discrimination claims.
The Court or Appeal stated that the issue was whether the recruits could perform the essential functions of a police recruit – the job duties they held before their reassignment to light duty. The Court found that the essential functions of a police recruit included demanding physical tasks, which recruits could not perform even with a reasonable accommodation. As a result, the Court held that the recruits did not meet their burden as to the FEHA discrimination claim.
But, the Court affirmed the jury’s finding that the City failed to reasonably accommodate the recruits by not allowing them to continue in their light duty assignments.
The FEHA also gives employers a duty to reasonably accommodate the disabilities of an otherwise qualified employee. If an employee cannot perform his or her essential job functions, an employer may violate that duty if it fails to reassign the employee to a suitable alternative position, if one is vacant, with essential functions the employee can perform.
The City argued that the FEHA duty to accommodate does not extend to an employee who was never qualified for the position into which he or she was hired. The City reasoned that the recruits were not entitled to accommodation because they were still in training when their injuries occurred and were never qualified to become police officers. The Court rejected this argument, holding that the recruits only needed to show that prior to becoming disabled, they were qualified for the police recruit position.
The Court also found that the City had a duty to accommodate the injured recruits consistent with the City’s past practice. The Court stated that while FEHA does not require such accommodations, “to the extent an employer’s policies or practices indicate such accommodations are reasonable, an employer may violate FEHA by not making those accommodations available to all employees.” The Court held that because the City had allowed past recruit officers to remain on light duty until they recovered or became permanently disabled, the City could not deny the same accommodation to these recruits, who had received light duty before the City’s change in policy.
Finally, the Court reviewed the future economic damages the jury awarded to the recruits. The Court invalidated this part of the award, finding it speculative. The award was based on the assumptions that the recruits would have worked for the City for 25-33 years, earning promotions along the way, and then receive retirement income and benefits. However, the recruits presented no evidence of the likelihood they would successfully advance through the City’s ranks from the Police Academy all the way to retirement. Therefore, the Court held, the City was entitled to a new trial on the issue of future economic damages.
Atkins, et al v. City of Los Angeles (2017) 8 Cal.App.5th 696 [214 Cal.Rptr.3d 113].
This case has two important takeaways. First, once an employer has a past practice or policy of providing an accommodation to one employee, it may be unable to later claim that the same accommodation is unreasonable as applied to another employee. Second, although an employer need not create permanent light duty assignments under the FEHA, courts will look to what the employer’s policy or past practice provided at the time of the employee’s injury. As a result, this case signals that an employer’s policy or past practice changes as to the duration of a light duty assignment apply on a prospective basis only.