San Francisco Employment Law Firm Blog
It is not uncommon for a California employer to justify its termination of the disabled worker and it’s failure to engage in interactive process to find reasonable accommodations as require by law under the Fair Employment and Housing Act, by arguing that because the didn’t owe the duty to engage in interactive process because the terminated employee never requested it.
The California courts, however, routinely disagree with that argument by employers. Thus, the second district rejected such an argument by an employer, United Air Lines, where the company suggested that a disabled employee must first come forward and request a specific accommodation before the employer has a duty to investigate such an accommodation. The court reminded the employer that the law does not require the worker to speak any magic words before the disabled employee is subject to its protections. Of course, as the court continued to explain, the employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. The employer is also normally not liable for failing to accommodate a disability of which he had no knowledge. Finally, an employer has no duty to accommodate an employee who denies having a disability or denies a need for accommodation. Prillman v. United Air Lines, Inc. (1997).
However, the employer is likely to have the duty to engage in interactive process with a worker who the employer knows is disabled or who the employer perceives to be disabled.
The Prillman court found the Washington Supreme Court’s interpretation of the California disability statute to be useful. The Washington court held that the duty of an employer to reasonable accommodate an employee’s disability does not arise until the employer is “aware of the employee’s disability and physical limitations.” The employee bears a burden of giving the employer notice of the disability.
This notice then triggers the employer’s burden to take “positive steps” to accommodate the employee’s limitations. The employee, of course, retains a duty to cooperate with the employer’s efforts by explaining his disability and qualifications. Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee’s capabilities and available positions. Goodman v. Boeing Co. (1995) (WA).