Under changes to the state disability discrimination law that took effect January 1, you can be sued for failing to cooperate with a disabled employee to determine whether they need a reasonable accommodation and to explore available options. A new California Court of Appeal decision provides more detail on how you and the disabled employee are required to work together to find an accommodation.
Stress Disorder Prevents Return To Job
Leanne Jensen, a Wells Fargo Bank branch manager in Los Angeles, was assaulted one morning by robbers who demanded she open the vault and ATM machine. When Jensen said she didn’t know the combinations, the assailants tied her up and put guns to her head.
After the incident, Jensen was diagnosed with post-traumatic stress disorder, which her doctor said precluded her from working in a bank branch or in any job dealing with the public. Wells Fargo assigned a human resources vice president to work with Jensen to find a suitable alternative position.
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Lawsuit Erupts
But a year later, after Jensen still hadn’t returned to work, she sued, charging that Wells Fargo failed to accommodate her mental disability. She claimed that she applied for numerous positions and tried to locate available jobs that would fit her limitations, but the bank informed her that none were available.
Bank Claims Employee Responsible
Wells Fargo asked the court to throw the case out without a trial. The bank contended that it met its reasonable accommodation obligation by sending Jensen notices about open positions and allowing her to compete for them on an equal basis with other candidates.
Plus, the bank asserted, Jensen didn’t act in good faith when the company tried to accommodate her. Wells Fargo said she kept adding restrictions, such as refusing to work in certain geographic areas, in a nonoffice environment, in sales or lower-paying jobs, or in temporary positions.
Court Explains Accommodation Duties
The Court of Appeal found Wells Fargo’s efforts to accommodate Jensen lacking in several respects and therefore ruled that her case could go forward.
First, the bank offered Jensen only a temporary position, and the court said that this was not a reasonable accommodation.
Second, the court explained that Wells Fargo had to do more than simply permit Jensen to compete for jobs equally with other candidates. When reassignment is required, disabled employees are entitled to preferential consideration for a vacant position they are qualified to fill.
Finally, the bank should have done more than just send Jensen job notices. The court said an employer can’t shift the entire burden of finding a new position to a disabled worker because the employer has much greater access to information about possible jobs.
Employees Have Obligations Too
The court noted that a disabled employee must, as soon as possible, present the employer with a concise list of their work restrictions. And both parties must keep the lines of communication open. There was evidence that Jensen obstructed company efforts to accommodate her by adding restrictions beyond those her doctor imposed. Plus, she allegedly refused to talk with managers who might have helped her find a suitable position. However, because Jensen denied these allegations, the court sent the case back to the lower court to determine who caused the interactive process to break down.
Practical Measures
It’s more important than ever to be proactive in fulfilling your accommodation obligations because you can be sued for failing to engage in an interactive process with a disabled employee. When a worker informs you that they are disabled, talk openly with the person about their abilities and limitations. If needed, ask the person to prepare a list of work restrictions to help you develop a successful accommodation.
In situations that call for reassignment, look for a vacant position the employee qualifies for, rather than leaving it up to the worker to find a new job. And note that the employee is entitled to preferential treatment if others are competing for an open position. Finally, be sure to scrupulously document your accommodation efforts.