A common problem that arises in disability discrimination cases is the extent to which the employer engaged in the “interactive process” with an employee to determine a reasonable accommodation for the employee’s disability. Under California’s Fair Employment and Housing Act (“FEHA”), the employer’s failure to engage in the interactive process is an unlawful employment practice separate from any alleged discriminatory treatment.
Courts have held that the “interactive process” should be informal, non-ritualized, and conducted in good faith between the employer and employee to find an accommodation which will enable the employee to perform the job effectively. The law is clear that the employee must first request an accommodation, however the employee is not required to use any magic words. If the employer knows about the employee’s physical condition, the interactive process obligation arises “once the employer becomes aware of the need to consider an accommodation.”
A recent California court decision, Scotch v. Art Institute of California, emphasized that the interactive process is a continuous, “cooperative problem-solving” endeavor, and that communications must be open with each side airing its concerns in an effort to find a workable solution. Although this may sound like a departure into a marriage counseling session or a process best suited for resolving inter-personal conflict, the court was quite serious in its analysis of who is at fault for a breakdown in the process. The court noted that, “liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.”
The employer has a somewhat greater responsibility to identify workable solutions since the employer generally has better information about open or available job positions or the types of accommodations that may be available. Nonetheless, if a lawsuit has been filed, the employee must “identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.”
With these ideas in mind, employees should not be afraid to ask questions, to continue to press their employers for more information, and to seek accommodations that will allow them to perform their job.