Defenses to Reasonable Accommodations, Disability Discrimination

Defenses to Reasonable Accommodation for Disabilities in California: Overview, Legal Consequences, and Potential Problems in the Context of Wrongful Termination and Employment Law

Introduction:

In California, employers are legally obligated to provide reasonable accommodations to qualified employees with disabilities. However, there are certain defenses that employers can raise in cases where providing such accommodations would pose undue hardship, when there is a failure to engage in the interactive process, or when accommodation creates health and safety risks. Understanding these defenses is critical for both employers and employees. In this comprehensive overview, we will explore the legal framework surrounding these defenses, potential legal consequences for employers, and identify problems that may arise, supported by examples and detailed reasoning.

I. Legal Framework:

A. California Fair Employment and Housing Act (FEHA): The FEHA prohibits disability discrimination and mandates that employers with five or more employees provide reasonable accommodations to qualified individuals with disabilities. However, it acknowledges that accommodations are not required if they would impose an undue hardship, fundamentally alter the job, or create health and safety risks.

II. Legal Consequences:

A. Wrongful Termination Claims: Employees who believe they were wrongfully terminated due to failure to accommodate can bring legal claims against their employers. Successful claims can result in reinstatement, back pay, front pay, compensatory damages, punitive damages, and attorney’s fees.

B. Legal Defense: Employers can defend themselves against wrongful termination claims by asserting one or more of the following defenses:

1. Undue Hardship: Arguing that providing accommodation would cause significant difficulty or expense.
2. Failure to Engage in the Interactive Process: Demonstrating that the employee or employer did not actively participate in the interactive process to identify and implement accommodations.
3. Health and Safety Risk: Asserting that accommodating the employee would pose a direct threat to the health or safety of others in the workplace.

III. Potential Problems:

A. Defining Undue Hardship: Employers and employees may have differing interpretations of what constitutes undue hardship. This can lead to disputes and legal challenges when determining whether an accommodation is reasonable.

B. Failure to Engage in the Interactive Process: Both parties must actively engage in the interactive process to identify and implement appropriate accommodations. A breakdown in communication or unwillingness to participate can hinder the process and lead to disputes.

C. Assessing Health and Safety Risks: Determining when a disability accommodation poses a direct threat to health and safety can be challenging. Employers must base their decisions on objective evidence and assessments rather than assumptions.

IV. Examples:

1. Undue Hardship Example: An employee with a severe allergy requests that the office be made fragrance-free as a reasonable accommodation. The employer argues that this would impose an undue hardship as it would require significant changes and disruptions in the workplace. If the employer can provide evidence that the cost and disruption are indeed significant, they may have a valid defense against providing this accommodation.
2. Failure to Engage in the Interactive Process Example: An employee with a hearing impairment requests a sign language interpreter for meetings but does not actively engage with HR or the employer to discuss possible accommodations. If the employer can demonstrate that they made reasonable efforts to engage in the interactive process but the employee did not participate, this may serve as a defense against a wrongful termination claim.
3. Health and Safety Risk Example: An employee with a highly contagious illness requests to return to work in a crowded office environment despite posing a direct threat to the health and safety of coworkers. The employer may have a valid defense in this case, as accommodating the employee could indeed create significant health and safety risks for others.

Conclusion

In conclusion, understanding the defenses to reasonable accommodation for disabilities is essential for both employers and employees in California. While employers have a duty to accommodate disabled employees, they are not required to do so if it would result in undue hardship, if there is a failure to engage in the interactive process, or if health and safety risks are present. To mitigate risks and ensure compliance with the law, employers should carefully assess each accommodation request, actively engage in the interactive process, and make decisions based on objective evidence to avoid potential legal consequences and disputes.

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2544. Disability Discrimination—Affirmative Defense—Health or Safety Risk

New September 2003; Revised May 2019, November 2019

Directions for Use

This instruction is based on the Fair Employment and Housing Council regulation

addressing the defense of health or safety risk. (See Cal. Code Regs., tit. 2,

§ 11067.) Give CACI No. 2543, Disability Discrimination—“Essential Job Duties” Explained, to instruct on when a job duty is essential.

If more than one essential job duty is alleged to involve a health or safety risk, pluralize the elements accordingly.

Give the optional paragraph following the elements if there is concern about a future risk. (See Cal. Code Regs., tit. 2, § 11067(d).)

The list of factors to be considered is not exclusive. (See Cal. Code Regs., tit. 2,

§ 11067(e).) Additional factors may be added according to the facts and circumstances of the case.

Sources and Authority

• Risk to Health or Safety. Government Code section 12940(a)(1).
• Risk to Health or Safety. Cal. Code Regs., tit. 2, § 11067(b)–(e).
• “FEHA’s ‘danger to self’ defense has a narrow scope; an employer must offer more than mere conclusions or speculation in order to prevail on the defense

. . . . As one court said, ‘[t]he defense requires that the employee face an “imminent and substantial degree of risk” in performing the essential functions of the job.’ An employer may not terminate an employee for harm that is merely potential . . . . In addition, in cases in which the employer is able to establish the ‘danger to self’ defense, it must also show that there are ‘no “available reasonable means of accommodation which could, without undue hardship to [the employer], have allowed [the plaintiff] to perform the essential job functions

. . . without danger to himself.” ’ ” (Wittkopf v. County of Los Angeles (2001) 90 Cal.App.4th 1205, 1218–1219 [109 Cal.Rptr.2d 543], internal citations omitted.)

• “An employer may refuse to hire persons whose physical handicap prevents them from performing their duties in a manner which does not endanger their health. Unlike the BFOQ defense, this exception must be tailored to the individual characteristics of each applicant . . . in relation to specific, legitimate job requirements . . . . [Defendant’s] evidence, at best, shows a possibility [plaintiff] might endanger his health sometime in the future. In the light of the strong policy for providing equal employment opportunity, such conjecture will not justify a refusal to employ a handicapped person.” (Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 798–799 [175 Cal.Rptr. 548], internal citations and footnote omitted.)
• “FEHA does not expressly address whether the act protects an employee whose disability causes him or her to make threats against coworkers. FEHA, however, does authorize an employer to terminate or refuse to hire an employee who poses an actual threat of harm to others due to a disability . . . .” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 169 [125 Cal.Rptr.3d 1] [idle threats against coworkers do not disqualify employee from job, but rather may provide legitimate, nondiscriminatory reason for discharging employee].)

FAIR EMPLOYMENT AND HOUSING ACT             CACI No. 2544

• “The employer has the burden of proving the defense of the threat to the health and safety of other workers by a preponderance of the evidence.” (Raytheon Co.

v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 1252 [261

Cal.Rptr. 197].)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,

§§ 1045–1048

Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California Fair Employment And Housing Act (FEHA), ¶¶ 9:2297, 2297.1, 9:2402, 9:2402.1 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, § 2.111

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.97[1] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.54, 115.104 (Matthew Bender)

California Civil Practice: Employment Litigation § 2:86 (Thomson Reuters)

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2545. Disability Discrimination—Affirmative Defense—Undue Hardship

New September 2003; Revised November 2019, May 2020

Directions for Use

The issue of whether undue hardship is a true affirmative defense or whether the defendant only has the burden of coming forward with the evidence of hardship as a way of negating the element of plaintiff’s case concerning the reasonableness of an accommodation appears to be unclear. (See Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 733 [214 Cal.Rptr.3d 113].)

For an instruction in the religious creed context, see CACI No. 2561, Religious Creed Discrimination—Reasonable Accommodation—Affırmative Defense—Undue Hardship.

Sources and Authority

• Employer Duty to Provide Reasonable Accommodation. Government Code section 12940(m).
• “Undue Hardship” Defined. Government Code section 12926(u).
• “ ‘Undue hardship’ means ‘an action requiring significant difficulty or expense, when considered in light of the following factors: [¶] (1) The nature and cost of the accommodation needed. [¶] (2) The overall financial resources of the

FAIR EMPLOYMENT AND HOUSING ACT             CACI No. 2545

facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility. [¶] (3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities. [¶] (4) The type of operations, including the composition, structure, and functions of the workforce of the entity. [¶] (5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.’ (§ 12926, subd. (u).) ‘ “Whether a particular accommodation will impose an undue hardship for a particular employer is determined on a case by case basis” ’ and ‘is a multi-faceted, fact- intensive inquiry.’ ” (Atkins, supra, 8 Cal.App.5th at p. 733.)

• “[U]nder California law and the instructions provided to the jury, an employer must do more than simply assert that it had economic reasons to reject a plaintiff’s proposed reassignment to demonstrate undue hardship. An employer must show why and how asserted economic reasons would affect its ability to provide a particular accommodation.” (Atkins, supra, 8 Cal.App.5th at p. 734, original italics, internal citation omitted.)

Secondary Sources

Chin et al., California Practice Guide: Employment Litigation, Ch. 9-C, California Fair Employment And Housing Act (FEHA), ¶¶ 9:2250, 9:2345, 9:2366, 9:2367 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, § 2.80

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.51[4][b] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, §§ 115.35, 115.54, 115.100 (Matthew Bender)

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2546. Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process (Gov. Code, § 12940(n))

New December 2007; Revised April 2009, December 2009, May 2022

FAIR EMPLOYMENT AND HOUSING ACT             CACI No. 2546

Directions for Use

In elements 3 and 4, select a term to describe the source of the plaintiff’s limitations. It may be a statutory term such as “physical disability,” “mental disability,” or “medical condition.” (See Gov. Code, § 12940(a).) Or it may be a general term such as “condition,” “disease,” or “disorder.” Or it may be a specific health condition such as “diabetes.”

Modify elements 3 and 4, as necessary, if the employer perceives the employee to have a disability. (See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61, fn. 21 [43 Cal.Rptr.3d 874].)

In element 4, specify the position at issue and the reason why some reasonable accommodation was needed. In element 5, you may add the specific accommodation requested, though the focus of this cause of action is on the failure to discuss, not the failure to provide.

For an instruction on a cause of action for failure to make reasonable accommodation, see CACI No. 2541, Disability Discrimination—Reasonable Accommodation—Essential Factual Elements. For an instruction defining “reasonable accommodation,” see CACI No. 2542, Disability Discrimination—“Reasonable Accommodation” Explained.

Bracketed element 7 reflects that there is a split of authority as to whether the employee must also prove that a reasonable accommodation was available. (Compare Shirvanyan v. Los Angeles Community College Dist. (2020) 59 Cal.App.5th 82, 87 [273 Cal.Rptr.3d 312] [“the availability of a reasonable accommodation is an essential element of an interactive process claim”] and Nadaf- Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 980–985 [83 Cal.Rptr.3d 190] [employee who brings a section 12940(n) claim bears the burden of proving a reasonable accommodation was available before the employer can be held liable under the statute] with Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424–425 [69 Cal.Rptr.3d 1] [jury’s finding that no reasonable accommodation was possible is not inconsistent with its finding of liability for refusing to engage in interactive process] and Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 243 [35 Cal.Rptr.3d 837] [if the employer’s failure to participate in good faith causes a breakdown in the interactive process, liability follows]; see Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018–1019 [93 Cal.Rptr.3d 338] [attempting to reconcile conflict].) See also verdict form CACI No. VF-2513, Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process.

Sources and Authority

• Good-Faith Interactive Process. Government Code section 12940(n).
  • Federal Interpretive Guidance Incorporated. Government Code section 12926.1(e).
  • Interactive Process. The Interpretive Guidance on title I of the Americans With

CACI No. 2546          FAIR EMPLOYMENT AND HOUSING ACT

Disabilities Act, title 29 Code of Federal Regulations Part 1630 Appendix.

• An employee may file a civil action based on the employer’s failure to engage in the interactive process. (Claudio, supra, 134 Cal.App.4th at p. 243.)
• “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.” (Gelfo, supra, 140 Cal.App.4th at p. 54, internal citations omitted.)
• “While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242 [206 Cal.Rptr.3d 841].)
• “FEHA requires an informal process with the employee to attempt to identify reasonable accommodations, not necessarily ritualized discussions.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379 [184 Cal.Rptr.3d 9].)
• “The point of the interactive process is to find reasonable accommodation for a disabled employee, or an employee regarded as disabled by the employer, in order to avoid the employee’s termination. Therefore, a pretextual termination of a perceived-as-disabled employee’s employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process.” (Moore, supra, 248 Cal.App.4th at pp. 243–244, original italics.)
• “FEHA’s reference to a ‘known’ disability is read to mean a disability of which the employer has become aware, whether because it is obvious, the employee has brought it to the employer’s attention, it is based on the employer’s own perception—mistaken or not—of the existence of a disabling condition or, perhaps as here, the employer has come upon information indicating the presence of a disability.” (Gelfo, supra, 140 Cal.App.4th at p. 61, fn. 21.)
• “Typically, the employee must initiate the process ‘unless the disability and resulting limitations are obvious.’ ” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169 [217 Cal.Rptr.3d

258].)

• “Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith. ‘Both employer and employee have the obligation “to keep communications open” and neither has “a right to obstruct the process.” [Citation.] “Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. 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.” [Citation.]’ ” (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971–972 [181 Cal.Rptr.3d 553].)

• “[Employer] asserts that, if it had a duty to engage in the interactive process, the duty was discharged. ‘If anything,’ it argues, ‘it was [employee] who failed to engage in a good faith interactive process.’ [Employee] counters [employer] made up its mind before July 2002 that it would not accommodate [employee]’s limitations, and nothing could cause it reconsider that decision. Because the evidence is conflicting and the issue of the parties’ efforts and good faith is factual, the claim is properly left for the jury’s consideration.” (Gelfo, supra, 140 Cal.App.4th at p. 62, fn. 23.)
  • “None of the legal authorities that [defendant] cites persuades us that the Legislature intended that after a reasonable accommodation is granted, the interactive process continues to apply in a failure to accommodate context. . . . To graft an interactive process intended to apply to the determination of a reasonable accommodation onto a situation in which an employer failed to provide a reasonable, agreed-upon accommodation is contrary to the apparent intent of the FEHA and would not support the public policies behind that provision.” (A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 464 [100

Cal.Rptr.3d 449].)

• “[T]he verdicts on the reasonable accommodations 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 an 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.” (Wysinger, supra, 157 Cal.App.4th at pp. 424–425, internal citations omitted.)
  • “We disagree . . . with Wysinger’s construction of section 12940(n). We conclude that the availability of a reasonable accommodation (i.e., a modification or adjustment to the workplace that enables an employee to perform the essential functions of the position held or desired) is necessary to a section 12940(n) claim. [¶] Applying the burden of proof analysis in Green, supra, 42 Cal.4th 254, we conclude the burden of proving the availability of a reasonable accommodation rests on the employee.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 984–985.)
  • “We synthesize Wysinger, Nadaf-Rahrov, and Claudio with our analysis of the law as follows: To prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a

reasonable accommodation that would have been available at the time the interactive process should have occurred. An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because ‘ “ ‘[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have.    ’ ” ’ However, as the Nadaf-Rahrov

court explained, once the parties have engaged in the litigation process, to prevail, the employee must be able to identify an available accommodation the interactive process should have produced: ‘Section 12940[, subdivision](n), which requires proof of failure to engage in the interactive process, is the appropriate cause of action where the employee is unable to identify a specific, available reasonable accommodation while in the workplace and the employer fails to engage in a good faith interactive process to help identify one, but the employee is able to identify a specific, available reasonable accommodation through the litigation process.’ ” (Scotch, supra, 173 Cal.App.4th at pp.

1018–1019.)

• “Well-reasoned precedent supports [defendant’s] argument that, in order to succeed on a cause of action for failure to engage in an interactive process, ‘an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.’ ” (Shirvanyan, supra, 59 Cal.App.5th at p. 96.)

Secondary Sources

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1048

Chin, et al., California Practice Guide: Employment Litigation, Ch. 9-C, Disability Discrimination—California Fair Employment and Housing Act (FEHA),

¶¶ 9:2280–9:2285, 9:2345–9:2347 (The Rutter Group)

1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination Claims, § 2.79

2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under Equal Employment Opportunity Laws, § 41.51[3][b] (Matthew Bender)

11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.35[1][a] (Matthew Bender)

1 California Civil Practice: Employment Litigation, § 2:50 (Thomson Reuters)

Call 310-312-1100 Now to schedule a time to discuss your matter with Attorney John Michael Jensen.