Under the California Fair Employment and Housing Act (FEHA), an employer must make a reasonable accommodation for the known disability of an employee. Cal. Gov. Code §12940(m); Department of Fair Employment and Housing v. Lucent Technologies, Inc. (9th Cir. 2011) 642 F.3d 728, 743. Failure to reasonably accommodate a disabled employee or applicant is a violation of the FEHA in and of itself. Brown v. Los Angeles Unified School District (2021) 60 Cal. App. 5th 1092, 1107; Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 745.
An employer must also accommodate an applicant or employee it regards as being disabled, even if the applicant or employee is not disabled. Cal. Gov. Code § 12940(m); 2 CCR § 11068(a); Prilliman v. United Airlines, Inc. (1997) 53 Cal.App.4th 935, 949-950; Fisher v. Sup.Ct. (Alpha Therapeutic Corp.) (1986) 177 Cal.App.3d 779, 783; Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 60. In this case, the duty to provide a reasonable accommodation is triggered even if the applicant or employee do not request a reasonable accommodation. Cal. Gov. Code § 12940(m); 2 CCR § 11068(a); Prilliman, supra, 53 Cal.App.4th at 949-950.
A reasonable accommodation is a “modification or adjustment to the workplace that enables the employee [or applicant] to perform the essential functions of the job held or desired.” Determining essential job functions is a “highly fact-specific inquiry.” Liu v. City and Cty. of San Francisco (2012) 211 Cal.App.4th 962, 971; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010; Nadaf-Rahrov v. Neiman Marcus Grp., Inc. (2008) 166 Cal.App.4th 952, 974. The FEHA provides that “essential functions means the fundamental job duties of the employment position” not just marginal functions. Government Code section 12926(f).
An employer’s duty to provide a reasonable accommodation is ongoing and not exhausted by one effort. Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954, 969. As long as providing the accommodation does not result in undue hardship to the employer, the employer may be liable for a single failure to reasonably accommodate an employee despite other efforts at accommodation. A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 464-465 (although the employer had accommodated employee’s disability by providing bathroom breaks for over a year, its failure to do so on a single occasion resulted in the employee suffering mental and physical consequences).
If you feel that your employer has not provided a reasonable accommodation for your disability, please feel free to call Hunter Pyle Law for a free consultation at (510)-444-4400 or inquire@hunterpylelaw.com.