California’s Fair Employment and Housing Act (FEHA) prohibits companies employing five or more persons from: 1) discriminating against an employee due to his or her physical disability; 2) failing to make reasonable accommodation for a worker’s known physical disability; 3) failing to engage in a prompt and good faith interactive process with a disabled employee to determine effective reasonable accommodations; and 4) retaliating against an employee for opposing practices that FEHA prohibits.
An employer may not discriminate against a disabled worker if he or she can perform the essential functions of a particular position with or without reasonable accommodation. A reasonable accommodation is a modification of working conditions that allows the disabled employee to perform those essential functions. An accommodation is not reasonable if doing so would produce undue hardship to the employer’s operations. See also, our previous disability-related articles, including Disability and Leave of Absence Policies, Pregnancy Disability Leave, and Disability Employment.
A vital aspect of any FEHA disability lawsuit arising out of these employer duties, is whether the defending company has clearly documented that it has fulfilled each of these obligations. A recent California Court of Appeal decision fully exonerating an employer illustrates what such adequate action and documentation entails. Nealy v. City of Santa Monica No. B246634 (Cal. Ct. App. Feb, 13, 2015. Also published in Westlaw, 234 Cal.App.4th (2015) 359. The decision confirms that required “reasonable accommodation” does not include an employer changing the essential functions of a job position at employee request.
Mr. Nealy was a long time employee of the City of Santa Monica, serving as a “solid waste equipment operator” for some six years up to 2003, when he injured his right knee on the job. With two surgeries, Mr. Nealy was out on “total temporary disability” for nearly two years.
With his doctor’s written certification, he sought return to work in May, 2005 with certain restrictions on pushing heavy trash bins. Nealy 234 Cal.App.4th at 366.
Mindful of its above obligations, the City maintained an “accommodations committee” to assist its human resources department in providing reasonable accommodations to disabled workers. To further document its actions in compliance with FEHA, the City also issued “essential job functions analysis” (EJFA) for various job positions.
For over five years following Mr. Nealy’s May, 2005 request to return to work and using its accommodations committee and its EJFAs for various posts, the City engaged in a series of interactions with him to find a position for which he was qualified and could perform the essential functions at least with reasonable accommodation.
In the last round, in Summer, 2010, the City concluded that Mr. Nealy could not perform the essential functions of the solid waste equipment operator position because the essential functions included several actions, including the lifting of heavy objects and the stooping or bending over to inspect machinery which Mr. Nealy’s doctor had directed in writing that Mr. Nealy could absolutely not perform. The City also engaged in a process to find a vacant position for Mr. Nealy qualified and which involved essential functions that he could perform. Unfortunately, the City concluded it could not accommodate him and thus laid him off. Nealy 234 Cal.App.4th at 369.
Mr. Nealy sued, alleging the City had violated all four of its FEHA disability obligations specified above. The lower court dismissed the case before trial for Mr. Nealy’s lack of evidence (“summary judgment”) and Mr. Nealy appealed. Nealy 234 Cal.App.4th at 369.
The Court of Appeal agreed with the lower court judge that the City could not be found in violation of FEHA. The heart of Mr. Nealy’s claim was that the City should be obligated to modify the essential functions of the solid waste equipment operator position in his circumstances so that he would not be required to perform the actions his doctor had established Mr. Nealy was incapable of, including the handling of heavy objects. The Court concluded: “The City was not required to eliminate essential functions from the job to accommodate [Mr. Nealy]… the inability to perform even one essential function is enough to move on to other alternatives, such as reassignment.” Nealy 234 Cal.App.4th at 377.
The Court also found the City had adequately documented its satisfactory exploration of other accommodations. “Reasonable accommodation may also include ‘reassignment to a vacant position’ if the employee cannot perform the essential functions of his or her position even with accommodation … FEHA requires the employer to offer the employee ‘comparable’ or ‘lower graded’ positions for which he or she is qualified … FEHA does not require reassignment, however, if there is no vacant position for which the employee is qualified … FEHA does not require the employer to promote the employee or create a new position for the employee to a greater extent than it would create a new position for any employee for any employee regardless of disability.” Nealy 234 Cal.App.4th at 377.
The Court went even further: “To the extent that Nealy claims the City has a duty to await a vacant position to arise, he is incorrect. A finite leave of absence may be a reasonable accommodation to allow an employee time to recover, but FEHA does not require to provide an indefinite leave of absence to await possible future vacancies.” Nealy 234 Cal.App.4th at 377. (emphasis supplied).
The Court also provided an important explanation of what constitutes unlawful retaliation in the disability context. FEHA prohibits an employer from terminating or discriminating against a worker because he or she has opposed practices that would be illegal under FEHA or because he or she has filed a complaint, testifed or assisted in any legal action arising from alleged FEHA violations.
However, Mr. Nealy did not actually oppose any supposed or alleged improper FEHA practices, for example seeking the advice of the Department of Fair Employment and Housing (DFEH) or filing an internal grievance with the City that it was violating his rights in the manner in which they were handling his requests. Instead, Mr. Nealy was merely engaged in the interactive process with the City required by the law. If, when an employer concludes that process unfavorably to the person’s continued employment, that employee then had a valid claim for retaliation, this would significantly blur and perhaps obliterate the distinction between an action for failure to accommodate or engage in the interactive process and retaliation.” Thus, the Court found that Mr. Nealy had no claim for retaliation either. Nealy Cal.App.4th at 380.
This Nealy v. City of Santa Monica decision thus illustrates the important service a company can provide itself by thorough, fair and well-documented accommodation processes. This starts with a business’s careful attention to the written description of the essential functions of each position in the company. As the Nealy Court pointed out: “ ’Essential functions’ means the fundamental job duties of the employment position the individual with the disability holds or desires. ‘Essential functions’ does not include marginal functions of the job … ‘Marginal functions’ of an employment position are those that, if not performed, would not eliminate the need for the job or that could be readily performed in an alternative way.” Nealy Cal.App.4th at 373.
For attorney assistance on this vital area, including the prevention or handling of disability-related disputes, please contact attorneys Tim Bowles, Cindy Bamforth, or Helena Kobrin.
Tim Bowles, May 11, 2015