Failure to Accommodate Just Once Can Mean Legal Liability….at Least in California

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California has its share of problems.  The state Unemployment Development Department announced last month that unemployment decreased to 12.3%. Ouch. The budget shortfall is estimated to reach some $40 billion in this fiscal year. Double ouch. Those earthquakes and forest fires can be a bit of a bummer too. But what does California have that is great, besides wonderful weather, great beaches and delicious fresh food and seafood? The most highly protective employee legislation in the country.

Let’s take for starters California’s Fair Employment and Housing Act (FEHA). It is more protective of employees than Minnesota’s Human Rights Act (MHRA), at least with regard to protections against disability discrimination, including the obligation that an employer provide reasonable accommodations to disabled employees.

First, California law makes it a separate, independent claim for an employer to fail to engage in a good faith interactive process with the employee to determine an effective reasonable accommodation if an employee with a known physical disability requests one. Minnesota law doesn’t have that provision. We should. An employer should engage in the interactive process and do so in good faith, but there is no legal requirement under the MHRA (the interactive process is the name given to the process that an employer and employee go through once the employee has requested an accommodation. Through the interactive process, the parties try to find an accommodation that works for the employee, and is also reasonable for the employer).

The California Appellate Court issued a decision this week, A.M. v. Albertson that further underlined the protections that are provided to California employees. In this case, the plaintiff, A.M. was diagnosed with cancer and was undergoing radiation and chemotherapy treatment, which left affected her salivary glands, which left her mouth very dry. To counter this, A.M. had to constantly drink water. As a result of the large volumes of water she consumes, she had to go to the bathroom to urinate frequently. Her accommodation as agreed upon with her employer was that she could keep a beverage at the check-out stand where she worked (Albertson’s is a grocery store chain on the west coast) and go to the bathroom when she needed. All she had to do was ask. From the facts of the case, there were no problems with the accommodations until one day.

On this day, a new manager was on duty. He didn’t know about the accommodations, as the store kept no written documentation (never a good idea!). When A.M. asked to go to the bathroom, at a time when the store was very busy, he repeatedly ignored her request. After asking to go to the restroom many times, the plaintiff finally urinated on herself, unable to wait any longer.

The jury found that even one single incident of failure to accommodate was sufficient to find liability under the FEHA. Albertson’s argued that this one incident of failure to accommodate was trivial, because it constituted a single incident in the context of a much longer period of successful accommodation. In essence, Albertsons reasons that the FEHA allows for at least one failure to accommodate, if a pattern of successful accommodation also is shown. The court, and the jury, wholeheartedly rejected this argument, stating that there is nothing in the text of the statute that says that there has to be a pattern of a failure to accommodate in order to find a violation of the statute. The jury award was $200,000.

The lesson in this case? Document. Have forms for all accommodations. Inform all managers of accommodations, especially new ones. And finally: always accommodate.

The California Fair Employment and Housing Act (FEHA) is widely considered to be the most protective legislation of its kind in the States. The text of the statute can be accessed here. You can contact me with questions at 612-605-6119 or at karen.lundquist@lundquistandlange.com. Our website can be accessed here.

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