No One You Know Should Be Sued For Disability Discrimination

Counseling clients to avoid exposure for disability discrimination can be a prickly business. Consider the following scenario.

Your client operates a small manufacturing concern. Every worker at the widget factory, from the owner to the janitor, takes lunch together at noon, every day. It has been that way every day since your client’s father opened the doors 45 years ago. This is because the factory operates as an assembly line, and it requires everyone’s simultaneous involvement.

One day, an employee, “Sam,” shares that he saw his doctor for vision problems and learned he has Type 2 Diabetes. Your client mutters some sympathetic words (not entirely sure about Diabetes or its different types), and the worker goes on to say that, owing to his Diabetes, he must eat more frequently. He wonders if, perhaps, he could break for lunch at 11 o’clock rather than noon.

Your client knows this is an absurd proposition, given the assembly line. Nonetheless, he says he’ll consider the request and they wander back to the factory floor. A week passes. Two. Sam continues to join everyone for lunch at noon. He does not raise the need to eat early again. However, his diabetic symptoms remind him daily that he needs to break and eat earlier. He gets shaky and light-headed. Not only is he physically uncomfortable, he is growing resentful. Each day that passes is a day closer to when he quits (or is “constructively terminated”) because he needs to eat earlier and your client has forgotten his request.

This describes an actionable case of “disability discrimination” or, at the very least a case of “failure to engage in the interactive process” (yes, that is a separate cause of action). What happens next is anyone’s guess, but it probably doesn’t end well for your client. If he had asked your advice, would you have known what to say? If not, read on.

Duties in this area are triggered when your client learns an employee has a “disability.” California’s Fair Employment and Housing Act (FEHA) defines disability to include a physical or mental disability, or medical condition. While “medical condition” encompasses a limited list of conditions, “physical disability” is read expansively, to include any condition that “limits a major life activity.”

While “mild” conditions, such as a common cold, non-migraine headaches and nonchronic gastrointestinal disorders do not meet the standard, the case law makes clear that FEHA has no durational requirement and even a passing condition may qualify. Employers tempted to define disability too narrowly must know that it has even been found to include uncorrected severe myopia (nearsightedness) and monocular vision.

Back to the widget factory. Sam was diagnosed with Type 2 Diabetes. A disability? Some would argue his condition affects the digestive, hemic and endocrine systems and, because eating is a “major life activity,” Type 2 Diabetes limits a major life activity and thus qualifies as a disability.
Assuming Sam has a disability, this knowledge triggered a duty by your client to “engage in the interactive process” in order to reasonably accommodate Sam if he could perform the essential function of his job with an accommodation.

What does the interactive process look like? It is a “discussion about an applicant’s or employee’s disability — the applicant or employee, health care provider and employer each share information about the nature of the disability and the limitations that may affect his or her ability to perform the essential job duties.”

The best practices for the interactive process include the following:

• Review the accommodation request;
• Obtain written medical release(s) or permission from the employee to obtain records and communicate with providers;
• Request the employee provide documentation from the his/her/their health care or rehabilitation professional regarding the nature of the impairment, its severity, the duration, the activities limited by the impairment(s) and the extent to which the impairment(s) limits the employee’s ability to perform the job’s essential duties/functions.

At the widget factory your client didn’t do any of this. This failure to engage in the process by itself supports an action and damages under FEHA.
Imagine if your client had engaged in the interactive process with Sam. They would have explored whether it was possible to “accommodate” Sam’s disability. The California Government Code and regulations provide guidance on reasonable accommodation. These include:

• Making facilities readily accessible to and usable by disabled individuals (e.g., providing accessible break rooms, restrooms or reserved parking places, etc.);
• Job restructuring;
• Offering modified work schedules;
• Reassigning to a vacant position;
• Acquiring or modifying equipment or devices;
• Adjusting or modifying examinations, training materials or policies;
• Providing qualified readers or interpreters;
• Allowing assistive animals on the worksite;
• Altering when and/or how an essential function is performed;
• Modifying supervisory methods;
• Providing additional training;
• Permitting an employee to work from home; and
• Providing paid or unpaid leave for treatment and recovery.

But, there are limits to this duty. FEHA does not obligate an employer to choose the best accommodation or the specific accommodation an employee or applicant seeks. They are not required to accommodate a worker’s medical marijuana use. Moreover, they are not required to provide an accommodation that causes the business to suffer “undue hardship,” defined as an action requiring “significant difficulty or expense” when considered in light of at least the following factors:

• Nature and cost of the accommodation weighed against tax credits, deductions or outside funding; and
• Nature, size and resources of business and accommodation’s impact on other employees.

At the widget factory, Sam’s desired accommodation was to break an hour earlier for lunch so that he would not feel shaky from a drop in blood sugar. On its face, this was not unreasonable, particularly given that a “shaky,” “light-headed” factory worker can endanger himself or others. Unfortunately, your client did not give this much thought. He clearly did not engage with Sam to explore potential (alternative) accommodations.

To be clear, it may be that your client cannot accommodate Sam. His proposal to allow him an early break might have proven unreasonable, given how the assembly line operates. If all possible accommodations would cause your client undue prejudice (applying the factors above), then it is unfortunate but Sam will need to find other work. Included in this equation is the principle that employers need not create a new position to accommodate a disabled applicant or employee. Thus, your client need not create a job for Sam in Accounting, where he can break early to eat without disrupting the assembly line. But the interactive process must be thorough and well-documented before this conclusion is reached without exposing your client to possible liability.

This law is nuanced. Unless your client has an experienced human resource professional, it might be a good idea to involve employment counsel, at least at the outset. The concepts and obligations may be unfamiliar, and the stakes are high. At least you can now rest easy knowing that you have some basic understanding of the risks in this area, and you can help your clients avoid disability discrimination liability. (This article originally appeared in the April, 2021 issue of the Santa Barbara Lawyer.)


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