Employer Held Liable for Single Failure to Accommodate, Despite Consistent Prior Accommodations

A.M. v. Albertsons LLC, No. A122307 (Cal. Ct. App. Oct 15, 2009)

The importance of reasonable accommodations and the interactive process was highlighted last week in A.M. v. Albertsons LLC, a case recently decided by the California Court of Appeals. The case involved a checkstand cashier who was diagnosed with cancer of the tonsils and larynx. She was ultimately able to return to work after treatment, but required the accommodation of having beverages with her at the checkstand (which was otherwise prohibited), and being permitted to take bathroom breaks as often as necessary. The cashier was repeatedly accommodated in this regard for over a year.

A new operations manager was later transferred to the store, but no one apprised her of the cashier's need for accommodations. On a day in which only the cashier, a courtesy clerk and the new manager were on duty, the cashier requested coverage at the checkstand so that she could take a bathroom break. The operations manager repeatedly told her she could not come relieve the cashier, and that the cashier would have to wait. The cashier could not leave her checkstand unattended due to store policy, and her repeated requests for coverage from the operations manager that day were not accommodated. She ultimately lost control of her bladder while at the checkstand and among customers. As a result of this incident and other various events which transpired in her personal life, the cashier suffered considerable emotional distress, which resulted in therapy and treatment in a psychiatric hospital. After some time away from work, she ultimately returned with restrictions and was accommodated.

The cashier sued her employer, alleging failure to accommodate and failure to engage in the interactive process under California's Fair Employment and Housing Act (FEHA). The jury found in favor of the cashier. The appellate court affirmed, declining to accept the employer's argument that because there had been a pattern of accommodations, the sole incident of failure to accommodate was not actionable because the manager wasn't aware of the need for accommodation and the cashier admittedly did not tell the new manager about her need for accommodation. The court held that such a position was contrary to the policies behind the FEHA, and that the issue had been appropriately submitted to the jury, which ultimately determined that a single incident could be actionable.

This case serves as a reminder to employers that communications – both between the employee and employer as well as between members of management – are critical to ensuring that the reasonable accommodation and interactive processes are undertaken in good faith. This case also demonstrates that a single, isolated incident of a failure to accommodate, even when considered in light of multiple accommodations, can be actionable and costly for an employer.