by Elizabeth R. Ison; J.D., M.S.
On May 6, 2009, a California Court of Appeal (4th Appellate District) issued its decision in Scotch v. The Art Institute of California, clarifying the obligations of the employer and employee to engage in an interactive process to accommodate the employee's disability. Scotch holds that the plaintiff in a "failure to accommodate" lawsuit must identify a reasonable accommodation, and establish that the accommodation was available at the time the "interactive process" should have occurred. Scotch v. The Art Institute of California – Orange Co., 173 Cal. App. 4th 986 (2009)
Scotch is a pro-employer decision because the court used a "no harm, no foul" analysis to let the employer off the hook for a brief interactive process that consisted of one meeting with the employee to "evaluate options." California employers must initiate an interactive process with a potentially disabled worker to understand the employee's needs and whether those needs can be reasonably accommodated. Gelfo v. Lockheed Martin Corp., 140 Cal. App.4th 34 (2006).
The scope of the "interactive process" has been difficult to define, but generally requires that each party (employer and employee) participate in good faith, make reasonable efforts to communicate concerns and exchange information as necessary to make informed decisions. An employer's failure to engage in the interactive process or failure to offer an identified reasonable accommodation is grounds for a disability discrimination lawsuit under both the California Fair Employment and Housing Act (FEHA) and the federal Americans with Disabilities Act (ADA).
Scotch's Employment
Carmine Scotch was employed as an instructor at The Art Institute of California (the Institute), a media arts school offering degrees to its students in fields such as animation, game arts and design, and interior design. The Institute’s accreditation guidelines require faculty members teaching upper division courses to hold certain graduate degrees and/or certifications. The Institute made limited exceptions to the guidelines, depending on a faculty member’s experience and other qualifications. Based on his skills and credentials, the Institute did not require Scotch to hold an advanced degree; however, it did encourage Scotch to obtain one and offer to pay his tuition expenses for a master’s degree program.
The Interactive Process
Scotch taught five classes per semester, the Institute’s minimum for “full-time” status to maintain health and life insurance benefits. In 2004, Scotch asked to stop teaching morning classes, stating only that the medication he took for “personal health issues” made it difficult to drive in the morning. The Institute honored the request, and didn’t inquire further into Scotch's "personal health issues."
In 2006, Scotch received a poor performance review citing, among other causes, Scotch’s failure to pursue a master’s degree as encouraged by the Institute. In response, Scotch told his supervisor that he suffered from a “long-term illness” that affected his job performance and his ability to pursue the master’s degree. Scotch’s supervisor referred him to the Institute's human resources director. Scotch told the HR director that he was HIV positive, and requested that the information be kept confidential.
The HR director scheduled a meeting including both a manager and Scotch to discuss Scotch's illness and performance. Scotch testified that he understood the purpose of the meeting was to discuss his performance review and to see if it was possible to extend the time period to meet the master’s degree requirement.
Scotch testified that he also suggested that the poor performance review happened in retaliation for previous absences relating to his illness. Scotch told his supervisors he did not have time to fulfill his job duties and get a master's degree, adding that he could not allow himself to get overly stressed and that he needed sufficient time to perform outside freelance work. The supervisor responded by suggesting a longer term master’s degree program that would allow Scotch to work toward the degree over three years, and decreasing his workload at the Institute. The parties didn’t move beyond “evaluation” of options and didn’t put a specific accommodation into place.
Hard Times at the Institute
In mid-2006, student enrollment declined at the Institute. To retain instructors with master's degrees, the Institute assigned them to upper-level courses. The Institute laid off seven faculty members who didn’t enroll in master’s degree programs, and reduced the hours of 10 others. The Institute told Scotch that he would be scheduled to teach lower division courses until he achieved a master's degree, and reduced his course load to three courses, which caused him to be classified as part time and lose his medical and life insurance benefits. Scotch objected to the reduced hours and ultimately resigned.
Scotch's Lawsuit
Scotch sued the Institute, alleging unlawful discrimination and retaliation by the Institute on the basis of his disability. Scotch also alleged that the Institute failed to engage in a good faith interactive process, and failed to identify and offer a reasonable accommodation as required by the FEHA. The trial court granted summary judgment in favor of the employer, and the appellate court agreed.
The appellate court focused on the poor performance review and Scotch's lack of a master's degree and failure to enroll in a master's program as evidence of the Institute's legitimate, nondiscriminatory reason for reducing Scotch's hours. Scotch could not prove that the Institute's reason for reducing his schedule was "pretextual," meaning that there was a causal link between the reduction in his hours and his disclosure that he was HIV-positive. Thus, his discrimination claim failed.
The appeals court also rejected Scotch’s claim that the Institute failed to make reasonable accommodation. It found that Scotch's proposed accommodation — giving him priority in assignment of lower division courses to insure that he maintained full-time status — was not reasonable and would not have accommodated his work restrictions (i.e., the need to avoid stress while he pursued a master's degree). The appeals court also noted that the Institute offered a potential accommodation — suggesting that Scotch pursue an extended three-year master's program that would have reduced his workload and limited the stress caused by his teaching schedule.
Regarding Scotch's claim that the employer failed to engage in the interactive process, the court did criticize the employer's process, particularly the failure to hold more than one meeting to discuss Scotch's need for accommodation. Still, Scotch did not produce adequate evidence for his claim to go to trial because the Institute offered a reasonable accommodation, and he did not identify another reasonable accommodation that was available at the time the interactive process should have occurred.
The court acknowledged that the employee does not have the same access to information about possible accommodations as the employer does during the interactive process. Still, the employee must ultimately be able to identify a reasonable accommodation that would have been available if the parties had engaged in a meaningful interactive process.
In Scotch's case, the court found that further meetings to discuss accommodations would have been nonproductive. The court asked: "If this case were presented to a jury, what remedy could it provide? How was Scotch damaged by any failure by the Institute to engage in the interactive process in good faith?"
Practical Considerations
The Scotch case highlights the confusion that often surrounds the interactive process, particularly when several areas of concern develop simultaneously. In Scotch, the parties didn’t have a common understanding of the purpose for their meeting. Was it to address his undefined “health issues”; his performance evaluation; or both? During the meeting, the parties apparently didn’t discuss any limitations on Scotch’s ability to do his job, except for his statement that his overall work requirements needed to be "slowed down." If Scotch proposed a reasonable accommodation, it was so ill-defined that the Institute never understood what Scotch requested.
The employer in Scotch was ultimately saved by the fact that Scotch couldn’t identify – even during the lawsuit – a reasonable accommodation to effectively address his disabling stress condition. If a reasonable accommodation did exist but was simply not identified through this interactive process, the appellate court would have likely reached a different conclusion and sided with the employee.
Work with experienced HR professionals or employment law counsel when dealing with these issues. Also, follow up on statements such as those made by Scotch to determine whether the employee is actually claiming that he/she suffers from a condition that qualifies as a disability. If so, you must initiate the interactive process. Meet with the employee as soon as possible under the circumstances, asking questions about the limitations posed by the disability and gathering information from both the employee and his/her medical care providers.
As part of this process, identify the essential functions of the employee's job, focusing on the physical requirements of the position. Carefully consider all potential accommodations, and document this decision-making process in the employee’s personnel file for future reference. If a reasonable accommodation exists, offer the accommodation to the employee. The key concept behind this process is "good faith."
Smart employers will remember that a careful interactive process is more than just a tool to avoid legal liability – it’s the right thing to do.
Sidebar:
Interactive Process/Accommodation Procedure
- Meet with the employee requesting an accommodation and record all discussions in a communication log.
- Request information about the condition and any limitations put on the employee.
- Analyze job functions to establish essential and nonessential job tasks – confirm employee’s agreement with essential functions.
- Request certification from health care provider regarding condition and limitations.
- Ask the employee what he/she specifically wants.
- Assess the reasonableness of each possible accommodation.
- Analyze requests from employee and health care provider and record in an analysis log.
- Implement the most appropriate accommodation that does not impose an undue hardship on the employer.
- Communicate with the employee and describe the rationale for denial if an identified or proposed accommodation is denied.
- Offer and discuss available alternatives if unable to grant a request for reasonable accommodation; record the discussion in a communication log.
In appropriate cases, helping with a job search, job placement or retraining options can be a valuable tool to manage risk and show good faith to an employee who can’t perform essential job functions.
Elizabeth R. Ison is a principal with The Ison Law Group. She can be reached at eison@theisonlawgroup.com or 916-492-6555.