Employees are Responsible for Identifying Reasonable Accomodations during Litigation

A Court of Appeal in the State of California reviewed and affirmed the decision of the Superior Court in Scotch v. The Art Institute of California-Orange County, Inc., Opinion No. 06CC11374 (May, 06, 2009).  The Court's primary evaluation was whether an employee is required to identify a reasonable, available accommodation to recover for an employer's failure to engage in the interactive process.  The Court held an employee, through the litigation process, must prove that a reasonable accommodation was available during the time-frame the "interactive process" should have taken place.

In Scotch, the employee was an instructor at the Art Institute of California-Orange County ("AIC"), a design, media arts, and culinary school offering bachelor's and associate's degrees.  AIC is accredited by the Accrediting Council for Independent Colleges and Schools ("ACICS") and is subject to its accreditation standards.  Mr. Scotch taught four (4) course sections after being hired in 2003, classifying him as full-time faculty. Scotch was also diagnosed with HIV, which subsequently caused his attendance and work performance to decrease.  AIC, however, was unaware of the severity of his illness, because Mr. Scotch never revealed the true nature of his illness.  Instead, he only justified his reasons for extended absences as "personal medical reasons." 

In 2006, enrollment at AIC decreased significantly, and the accreditation standards of the ACICS became more stringent, requiring full-time instructors to possess master's degrees.  AIC cancelled many course sections, and terminated the employment of some faculty members and changed the status of others from full-time to part-time.  Accordingly, AIC reduced Mr. Scotch's course load from four (4) courses to three (3), causing him to lose full-time status as well as insurance and medical benefits.  AIC learned the true nature of Mr. Scotch's medical condition when he submitted a letter expressing concern about lost medical benefits.  Despite extensive meetings, AIC failed to convince Scotch that his diminished attendance and low employee evaluations justified their business decision.  Mr. Scotch submitted his letter of resignation alleging discrimination and failure to accommodate his illness.  Mr. Scotch also brought multiple claims against AIC, including:

• disability discrimination,
• failure to accommodate, and
• failure to engage in the interactive process in violation of the California Fair Employment and Housing Act ("FEHA"). 

The California Court of Appeal held that an employer is only required to make accommodations for the known physical or mental disability of an employee.  An employer, however, is not required to make an accommodation that may produce undue hardship to its operation.  The Court then determined that AIC met its burden of presenting evidence of nondiscriminatory reasons for placing Scotch on part-time status.  AIC presented evidence that ACICS accreditation standards required faculty teaching upper division courses to have a master's degree.  AIC also provided Scotch's sub-par employee evaluation score, and evidence that he neither possessed a master's degree nor enrolled in a master's degree program.  The Court then held that Scotch failed to present evidence that the employer's stated business reasons were false or pretextual, or that AIC acted with discriminatory intent.  Here, the Court noted Scotch failed to show a causal link between his HIV-positive medical condition and AIC's decision to implement the master's degree requirement. 

Scotch also failed to show that the decision makers who implemented the master's degree requirement knew he was HIV positive.  "An adverse employment decision cannot be made because of a disability, when the disability is not known to the employer."  Scotch's proposed accommodation was not an adjustment to the workplace enabling him to perform the essential functions of his position.  Instead, he attempted to circumvent the degree requirements set by the university in accordance with ACICS accreditation.  The Court stressed the importance of distinguishing between an employer's knowledge of an employee's disability versus a limitation experienced by the employee resulting from a disability.  The ADA only requires employers to reasonably accommodate limitations, not disabilities.  There were no available accommodations for Mr. Scotch.  The accreditation standards were placed on all employees and were not conditional.

This ruling had an employer friendly determination, however, there are glaring pitfalls that employers must remain vigilant about. 

• First, employers must remain engaged throughout the entire litigation, even if it participated in the interactive process prior to the lawsuit being filed.
• Second, due to employees' limited access to internal positions and reasonable accommodations, employers must ensure they have exhausted all possibilities to provide employee accommodations.

The accommodation period and discoverable information at an employee's disposal extends throughout the litigation period.  In other words, if there was an open position available to the employee, he or she will be more vigilant about finding this position during the discovery process.  It is however, the employee's responsibility to identify a reasonable accommodation that was available during the time-frame where the interactive process should have occurred.