On November 30, 2020, the California Court of Appeal in Shirvanyan vs. Los Angeles Community College District (2020) 59 Cal. App. 5th 82 [Shirvanyan] held that to succeed on a claim for failure to engage in an interactive process under the Fair Employment and Housing Act ("FEHA"), an employee is required to identify a reasonable accommodation that would have been available at the time the interactive process was requested.
In Shirvanyan, a former employee sued her employer, Los Angeles Community College District (“District”) for (1) disability discrimination; (2) failure to engage in an interactive process; and (3) failure to provide reasonable accommodations under the FEHA. Plaintiff was a former kitchen coordinator employed at the District and sustained a wrist injury from carpal tunnel syndrome and shoulder injury during the course of her employment. Plaintiff claimed that as a result of the District's violations of the FEHA she developed a major depressive disorder, resulting in emotional distress and economic loss.
Plaintiff's damages however, were not caused by her physical injuries, but rather, the District's failure to treat her in the manner required under the FEHA. A jury awarded Plaintiff $2.9 million in damages.
On appeal, the District argued that a necessary element of a FEHA interactive process claim under Government Code section 12940, subdivision (n) is the availability of a reasonable accommodation at the time an interactive process should have taken place. The District also argued that the Worker's Compensation Act (“WCA”) provided an exclusive remedy for Plaintiff's claims.
The Court of Appeal agreed with the District in part, holding that Plaintiff was required to prove that a reasonable accommodation was available at the time of her request for an interactive process. As a result, the Court of Appeal overturned the jury verdict, and ordered a limited retrial. However, the Court did not agree with the District's WCA argument, holding that the WCA was intended to address a different kind of harm than the FEHA.
Fair Employment and Housing Act (“FEHA”)
Under the FEHA (Gov. Code section 12940, sub. (n)), it is unlawful if an employer fails to engage in a timely, good faith, interactive process with an employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known disability or medical condition.
The court in Shirvanyan relied on case precedent and confirmed that in order to succeed on a claim for failure to engage in an interactive process, Plaintiff must establish that a reasonable accommodation was available at the time of requesting an interactive process from the District. The Court of Appeal explained that allowing recovery for failure to engage in an interactive process when there is no reasonable accommodation available would be based solely on an employee's perception that she was not permitted a fair chance to perform her job−as opposed to her being denied such a fair chance if there was a reasonable accommodation available.
As a result of the Shirvanyan case, employees must prove a reasonable accommodation was available at the time of requesting an interactive process, or forfeit future claims for failure to engage in an interactive process.
Worker's Compensation Act
In Shirvanyan, the District argued that Plaintiff's damages for her depressive disorder—opposed to damages from her shoulder and wrist injuries—were barred by the Worker's Compensation Act (Labor Code section 3200 et seq.) because they were a derivative of her physical injuries. In response, Plaintiff argued that her depression was not because of her injury, but because the District repeatedly denied her requests for reasonable accommodations and failed to engage in an interactive process.
The Court of Appeal explained that worker's compensation exclusivity only applies to injuries sustained in the course and the scope of employment, which does not include conduct contrary to fundamental public policy. Failing to provide reasonable accommodations to a disabled employee or engage in an interactive process violates the fundamental public policy of the FEHA to promote equal employment opportunities for all. Thus, Plaintiff was permitted to recover damages for both her physical injuries and her depressive disorder under both the Worker's Compensation Act and FEHA.
In conclusion, the Court of Appeal in Shirvanyan held that to prevail on a claim for failure to engage in an interactive process under the FEHA, an employee must prove that a reasonable accommodation would have been available at the time of the request for the interactive process and that the Worker's Compensation Act does not bar recovery for claims under the FEHA.
In light of Shirvanyan, Districts should engage in good-faith interactive processes when requested. Moreover, Districts should document all stages of the interactive process, including all reasonable accommodations explored and communications with employees. If it is determined that no reasonable accommodation is available at the time an interactive process is requested, the District should document such to prevent future litigation.