"Interactive Process --
Employment Law: The onus is on the employer to show that it is a cooperative partner in seeking accommodation."
by Richard S. Rosenberg and Douglas N. Silverstein

Since the passage of the Americans with Disabilities Act ("ADA") and California's Fair Employment and Housing Act ("FEHA"), the vast majority of disability discrimination cases have been dismissed before trial because the plaintiffs could not prove they were "disabled". This trend has left employers feeling pretty confident, but that's about to change. Under a recent amendment to the FEHA which went into effect on January 1 (AB2222), the legislature significantly expanded the definition of a disability to make it much easier for employees and job applicants to establish they are protected under the law. These changes have the practical effect of shifting the focus in these cases to whether the employer has met its burden to accommodate the disabled employee or job applicant. In this regard, AB2222 specifically requires employers to conduct a "timely, good faith interactive process" to determine "reasonable accommodations" for "disabled" employees and job applicants.

A trio of recent ADA and FEHA cases from the Ninth Circuit and California Court of Appeal demonstrate just how far an employer must go in meeting its accommodation obligation. In Barnett v. U.S. Air, 2000 Daily Journal D.A.R. 10883 (9^th Cir. Oct. 4, 2000), the Ninth Circuit U.S. Court of Appeals analyzed the ADA's accommodation requirements and the "interactive process" which the ADA requires. The case is particularly concerning for employers because it is an en banc decision overruling an earlier decision favorable to the employer. Robert Barnett injured his back while lifting cargo on the job. Barnett used his seniority rights to temporarily transfer to a mail room position. However, Barnett was later "bumped" out of the mail room job by another employee with greater seniority. U.S. Air intended to transfer Barnett back to his cargo room position, even though Barnett's medical restrictions prevented him from performing the essential functions of that job. Meanwhile, Barnett proposed several different accommodations, including that he remain in the mail room job, that the airline restructure his cargo room job, or perhaps provide him with special lifting equipment.

The main dispute in Barnett was whether U.S. Air met its burden to engage in the "interactive process" the ADA requires. According to the court, U.S. Air never engaged in any meaningful discussion of Barnett's accommodation proposals. Relying upon U.S. Equal Employment Opportunity Commission regulations outlining the steps which must be taken by the employer, the Ninth Circuit laid out the following four step approach to accommodation: "(1) The employer must analyze the particular job involved and determine its purpose and essential functions; (2) Then, the employer must consult with the employee (or job applicant) to ascertain the precise job-related limitations imposed by the individual's disability, and how those limitations could be overcome with a reasonable accommodation; (3) In consultation with the employee, the employer must identify potential accommodations and assess their effectiveness in enabling the individual to perform the job's essential functions; and (4) The employer must consider the preference of the employee and then select and implement the most appropriate accommodation for both the employee and the employer." Barnett v. U.S. Air, 2000 Daily Journal D.A.R. 10883 (9^th Cir. Oct. 4, 2000). According to the Ninth Circuit, Barnett triggered the interactive process when he told his employer that he needed some accommodation for his disability and proposed alternative accommodations. Barnett contended that the airline fell short when it rejected his proposals without seriously considering them, and failed to offer any practical alternatives of its own. According to the court, U.S. Air's actions were not enough as a matter of law to meet its legal burden.

The Barnett court also looked critically at whether Barnett's proposed accommodations were "reasonable" under the ADA. U.S. Air defended its position by pointing to its seniority based transfer program. The court ruled that the company's seniority system (which was not based on a union contract) did not necessarily prevent the company from being required to transfer Barnett to the mail room on a permanent basis as an ADA required accommodation.

The California Court of Appeal recently weighed in on the accommodation issue in Jensen v. Wells Fargo Bank, 84 Cal. App. 4^th 245 (2000). Overturning a summary judgment for the employer, the appellate court returned the case to the trial court to allow a jury to decide whether Wells Fargo Bank sufficiently accommodated an employee who claimed to suffer from post-traumatic stress syndrome after an attempted robbery at a Wells Fargo branch she managed. Leanne Jensen asserted that her mental condition prevented her from working in any bank branch, performing sales work or even working with money. Consistent with its personnel policies, Wells Fargo allowed Jensen to apply for several open positions. However, in each case, the bank selected other, more qualified individuals. Jensen sued Wells Fargo under the FEHA alleging that the bank failed to accommodate her disability by not simply slotting her into an available position. According to the appellate court, Wells Fargo came up short on meeting its "reasonable accommodation" duty by making Jensen apply for other available jobs, suggesting that a disabled employee is entitled to preferential consideration as a form of accommodation.

In Humphrey v. Memorial Hospitals Assn., 2001 Daily Journal D.A.R. 1631 (9^th Cir., Feb. 13, 2001), the Ninth Circuit took the ADA accommodation requirement even further, by requiring the employer to allow a disabled employee to work at home. Reversing a district court's grant of summary judgment in favor of the employer, the Ninth Circuit ordered the case to trial over whether the employer could refuse an employee's request to work at home if others were allowed to do so as well.

Carolyn Humphrey was employed by Memorial Hospitals Assn. ("MHA") since 1986 as a medical transcriptionist. It was undisputed that she had excellent job performance throughout her employment. In 1989, she began to experience severe psychological problems that prevented her from getting to work on time, or at all. The opinion states that Ms. Humphrey engaged in a series of obsessive rituals each morning. Among other things, she felt compelled to rinse her hair for up to an hour, and if her hair didn't "feel right" after she finished it, she would return to the shower to wash it again. She would also pull out strands of her hair and examine them closely because she felt as though something was crawling on her scalp. This process reportedly could take several hours. She also dressed very slowly, and repeatedly checked and rechecked for papers she needed for work. Once she realized she was late, Humphrey would panic, making it difficult for her to leave her house. As a result, MHA twice disciplined her for tardiness.

After watching an episode of Oprah Winfrey devoted to attention deficit disorders, Humphrey began to suspect for the first time that her symptoms might be related to a medical condition. Humphrey was subsequently diagnosed with obsessive compulsive disorder. Upon learning of the disability, MHA tried to accommodate Humphrey by permitting her to report to work any time within 24 hours of her start time. Humphrey nevertheless continued to miss work over the next three months. A few months later, Humphrey sent an e-mail to MHA requesting that she be allowed to work from home. Notably, MHA allowed certain medical transcriptionists to work out of their homes. However, her request was denied based on a company policy prohibiting employees to work at home if they had any previous disciplinary problems. After Humphrey was absent two more times, and on October 10, 1995, she was fired.

MHA argued that Humphrey's inability to come to work as scheduled rendered her unqualified for the medical transcriptionist position. MHA urged that regular and predictable attendance was an "essential function" of the position. The Ninth Circuit found a triable issue concerning whether Humphrey could perform the job's essential functions at home. A critical finding which the Court made was that physical attendance at MHA's offices was not an "essential" job duty (as defined in the ADA) because MHA permitted other medical transcriptionists to work from home. The Court also ruled that MHA's denial of Humphrey's request to work at home (on the basis of her disciplinary record) was improper inasmuch as the behavior which precipitated the warnings was caused by her disability.

The Ninth Circuit also took a hard look at the interactive process undertaken by MHA. According to the Court, the company fell short of what the law required. The Ninth Circuit held that MHA had a continuing, affirmative duty under the ADA to explore further methods of accommodation before terminating Humphrey: "the employer's obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed."

California employers who are still unfamiliar with their obligations to accommodate disabled employees and job applicants should view these cases as a wake up call. Because mistakes are easy to make and very costly to fix, the entire management team should be trained on the nuances of the ADA and FEHA. Companies faced with performance issues caused by physical or mental conditions must tread cautiously to ensure they have fulfilled their accommodation requirements. It is also essential that employers coordinate these obligations with their obligations under federal and state family leave laws and California's Workers' Compensation Act. Employees who request family leave for their own illness may be entitled to additional leave (as a "disabled" employee) beyond what is mandated under the family leave laws. Also, company policies which limit workers' compensation leave to a stated period may run afoul of these accommodation rules as well.

Once an employer knows or suspects that a physical or mental condition is interfering with some aspect of an employee's job performance, the onus is now clearly on the employer to demonstrate that it was an active, cooperative partner in the interactive accommodation process. Prudent employers will develop compliant time off policies and train their entire management team on when and how to talk with employees about disability accommodation issues. This is an investment that is likely to pay big dividends in the future in the form of improved employee relations and lawsuit prevention.

Richard S. Rosenberg is a founding partner of the Universal City management labor law firm Ballard, Rosenberg, Golper & Savitt. Douglas N. Silverstein is a senior associate with the firm.