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Disability Harassment in the Workplace

Disability - Failure to Accommodate

Business Litigation

Employers who are aware of an employee's disability have an affirmative duty to make reasonable accommodations for such disability. This duty arises even if the employee has not requested any accommodation. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 949-950)

Under the FEHA, an employer must reasonably accommodate an applicant or employee whom it regards as disabled, even if the applicant or employee is not actually disabled. The FEHA's reasonable accommodation requirement does not in any way distinguish between actually disabled and "regarded as" disabled individuals. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 60.)

"Accommodation" means that the employer must be "willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work" (Vande Zande v. State of Wisconsin Dept. of Admin. (7th Cir. 1995) 44 F.3d 538, 542.)

A reasonable accommodation is one that would enable an employee with a disability to enjoy an equal opportunity for benefits and privileges of employment as are enjoyed by employees without disabilities." (Howell v. Michelin Tire Corp (MD AL 1994) 860 F.Supp. 1488, 1492)

The employer's duty to provide reasonable accommodations is a continuing one and is not met by a single effort. (McAlindin v. County of San Diego (9th Cir. 1999) 192 F.3d 1226, 1236.)

That an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability under §12940(n.) If the employer is responsible for a later breakdown in the process, it may be held liable. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 986 – employer allegedly caused breakdown in interactive process by refusing to provide information about available positions.)