Employer Required to
Accommodate Employees
Who Are Perceived as Disabled
A California
Court of Appeal recently decided an important disability accommodation
issue. In Gelfo v. Lockheed Martin
Corporation, 2006 Cal.LEXIS 830 (June 2,
2006), the court held that an employer must attempt to accommodate an
employee who is "regarded as" disabled, even if the individual is
not actually disabled.
The
California Fair Employment and Housing Act (FEHA) requires
employers to reasonably accommodate disabled employees and engage in an
interactive process with the employee to determine which accommodations
will work. Government Code § 12950 (a), (m), (n).
This
case broadens an employer's obligations under FEHA and is a significant
departure from several federal court interpretations of the Americans with
Disabilities Act. Once again, California
courts have chosen to interpret FEHA's disability
discrimination provisions in a much broader manner than federal courts
interpret the ADA.
Background of the Case
Charles
Gelfo, a senior metal fitter at Lockheed had a
work-related injury to his lower back that resulted in significant work
restrictions. The workers' compensation medical report stated that he would
not be able to return to his position as a metal fitter and instructed Gelfo to avoid heavy lifting, repetitive bending, and
prolonged sitting and standing.
While
his claim for benefits was pending, he was laid off as part of a reduction
in force. Later, Gelfo became eligible for recall
and completed training for a different position as a fabricator. Lockheed
offered Gelfo a fabricator position, but then
rescinded the offer after reviewing its file and determining that Gelfo's medical restrictions rendered him unable to
perform the essential functions of his new position.
Gelfo told Lockheed that he was feeling fine and
that he no longer had any restrictions that would prevent him from
performing the fabricator position. Gelfo also
told Lockheed that he had been cleared to return to work, but that his
attorney had told him not to share the clearance with Lockheed.
Lockheed
submitted the issue to its Placement Review Committee, which carefully
considered the issue. The Committee reviewed the essential functions of the
position, the workers' compensation medical reports and Gelfo's
deposition transcript. The Committee also consulted Lockheed's in-house
physician. After review, Lockheed concluded that Gelfo
could not perform the essential functions of the job,
that no reasonable accommodation was possible, and refused to
re-hire him.
Gelfo sued for disability discrimination, failure
to accommodate and failure to engage in the interactive process under FEHA.
After
a six-day jury trial, the trial court issued a directed verdict in favor of
Lockheed determining that (1) Gelfo was not
actually disabled; and (2) Lockheed had no duty to reasonably accommodate
or engage in the interactive process with an employee who was not actually
disabled.
The
only issue submitted to the jury was whether Lockheed violated FEHA by
refusing to hire Gelfo because it regarded him as
disabled. The jury found for Lockheed on this issue.
Troubling Result on Appeal
Gelfo successfully appealed. On review, the court
held that the trial court erred in submitting the issue of whether Gelfo was regarded as disabled to the jury. Instead,
the trial court should have determined as a matter of law that Lockheed
regarded Gelfo as disabled because it admitted
this during the trial by stating that its decision not to rehire was based
on its belief regarding the medical restrictions. Any employee or applicant
who is denied a job based on medical restrictions in his/her file is,
according to the court, regarded as disabled.
In
the most troubling portion of its decision, the court then went on to state
that an employer must engage in an informal interactive process to
determine whether a reasonable accommodation exists for an employee it
regards as disabled. Thus even though Gelfo was
found to have no actual disability, Lockheed was still required to engage
in the interactive process, and give him a reasonable accommodation, if
necessary.
The
result: an employer is now required to reasonably accommodate a
non-existent impairment!
This
decision goes against the Ninth Circuit's decision in Kaplan v. City of
North Las Vegas, 323 F.3d 1226. In Kaplan, the Ninth Circuit held that
"regarded as" plaintiffs are not entitled to reasonable
accommodation under the ADA.
The Kaplan court reasoned that if plaintiffs who are perceived as disabled
are entitled to reasonable accommodation, it would lead to "bizarre
results."
The
court of appeal in Gelfo, instead
chose to rely on a Tenth Circuit case which stated "an employer who is
unable or unwilling to shed his or her stereotypic assumptions based on a
faulty or prejudiced perception of an employee's abilities must be prepared
to accommodate the artificial limitations created by his or her faulty
perceptions. In this sense, the ADA
encourages employers to become more enlightened about their employees'
capabilities, while protecting employees from employers whose attitudes
remain mired in prejudice." The Gelfo
court noted that the protections under FEHA are broader than the
protections under the ADA.
What Should Employers Do?
This
case sends a message to employers to be very careful when making decisions
regarding employees who have current or past medical restrictions.
Employers
should:
- Engage in the
interactive process for any applicant or employee it regards as
disabled. Set aside assumptions about the actual or perceived medical
limitations of the employee and have an open dialogue about the need
for accommodation and possible accommodations. Even if the final
decision is that there is no reasonable accommodation, this process
should still be initiated. Do not wait for the employee to ask for a
reasonable accommodation.
- Do not rely on old
medical information. Obtain updated and objective medical information
and only base decisions on that current information.
- Be wary of relying
on workers' compensation medical reports. These reports are geared for
the workers' compensation system and do not answer the necessary
questions under FEHA or the ADA.
- Do not require
employees to certify that they can return to work without any physical
restrictions. According to the court, "A policy requiring an
employee be 100 percent healed before returning to work is a per se
violation [of the FEHA and ADA] because it permits an employer to
avoid the required individualized assessment of the employee's
ability."
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