• "Regarded As" Disability Discrimination Claims: A Trap for the Unwary (Employer)
  • April 20, 2010
  • Law Firm: McCormick, Barstow, Sheppard, Wayte & Carruth LLP - Fresno Office
  • Given the recent economic downturn and concomitant increase in the rate of layoffs and unemployment, it is no surprise that employment-related litigation has proliferated. Because of this, it is critically important for employers to exercise increased vigilance in guarding against employment-related claims. The focus of this article is to call employers’ attention to a lesser-known area of exposure under the Fair Employment and Housing Act (the “FEHA”): Disability discrimination claims for “regarded as” or “perceived” disabilities.

    Regarding An Employee As Disabled Triggers Obligations Under the FEHA

    By now, most employers in California are aware that it is unlawful to discriminate against a job applicant or employee in compensation or in the terms, conditions, or privileges of employment on account of his or her physical disability, mental disability or medical condition. But some may be surprised to learn that it is also unlawful for an employer to discriminate against an individual who the employer regards or perceives as disabled, even if it turns out that the individual does not suffer from an actual disability. Discrimination in this regard is used broadly to include failing to engage in the interactive process to see if a disabled (or perceived to be disabled) employee can be accommodated, as well as failing to provide a reasonable accommodation to that employee.

    The FEHA broadly defines “disability” in a number of ways, the most common of which is “Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine” and “(B) Limits a major life activity.” A major life activity includes a litany of everyday activities, including the ability to perform one’s job.

    Germane to this article, an employee is also considered “disabled” under the FEHA if the employee is: “regarded or treated by the employer ...as having, or having had, any physical condition that makes achievement of a major life activity difficult”; or “regarded or treated by the employer ...as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability.” Thus, an employer faces potential exposure for employment decisions based on an erroneous belief that an employee suffers (or suffered) from a disability.

    An employer that bases any decision affecting the compensation or terms, conditions or privileges of employment on its belief (albeit inaccurate) that an employee is (or was) disabled faces the same exposure under FEHA as it would had it made the same decision based on a known actual disability of an employee. In both instances, the decision is discriminatory and prohibited under the FEHA because it is based on stereotypic assumptions not indicative of the individual ability of the employee.

    Furthermore, and as discussed below, the mere belief that an employee is disabled, or if the employer treats the employee as if he or she were disabled, triggers duties on the part of the employer to engage in the interactive process with the affected employee, and even may require that the employer offer that employee a reasonable accommodation in order to allow the employee to perform the essential functions of his or her job, despite the fact that the individual may not suffer from an actual disability.

    Under the FEHA, an employer must engage in the interactive process with, and reasonably accommodate if possible, an applicant or employee whom it regards as disabled, even if the applicant or employee is not actually disabled. Unlike its Federal counterpart (the Americans with Disabilities Act), the FEHA’s reasonable accommodation requirement does not distinguish between actually disabled and “regarded as” disabled individuals. Gelfo v. Lockheed Martin Corp. (2006) 140 Cal App 4th 34, review denied (2006) 2006 Cal. LEXIS 10099. Accordingly, California employers can be held liable under the FEHA if they: (1) fail to engage in a timely good faith interactive process with an employee or applicant who is regarded as disabled to determine whether a reasonable accommodation, if any, is available which would allow the employee to perform the essential functions of the job; or (2) fail to provide the regarded as disabled employee with a reasonable accommodation which would allow the employee to perform the essential functions of the job. The only exception to this rule is if the accommodation requested by the employee is unreasonable, or the employee cannot be accommodated without causing undue hardship to the employer’s operations.

    The Good Faith Interactive Process

    Generally, an employer must engage in a timely, good faith interactive process in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or a known medical condition. While the FEHA does not expressly so require, California case law makes clear that the employer must initiate the process if the employee’s disability is known or apparent. As stated by one California appellate court: “[An employer] knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation.” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887.)

    The interactive process contemplates that the employee and employer will communicate directly with each other to exchange information about the employee’s disability, any limitations as a result of the disability, job skills and job openings, and any possible reasonable accommodations to allow the employee to perform the essential functions of the job. The purpose of the process is to facilitate an open exchange of information between the employer and employee with the goal of identifying a means, if reasonable and without undue burden to the employer, to keep the disabled employee in the work force.

    If an employer fails to engage in the interactive process with a disabled employee, or an employee it regards as disabled, the employer faces potential liability under the FEHA.

    Reasonable Accommodation

    The FEHA requires an employer to “make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Gov. Code § 12940(m).) FEHA defines the term “reasonable accommodation” only by way of a non-exhaustive list, and provides no guidance as to whether a reasonable accommodation may require the employee to perform the essential functions of the job. In Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, the Fourth Appellate District of the California Court of Appeal recently clarified that a reasonable accommodation means “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” This definition is consistent with the federal Equal Employment Opportunity Commission’s interpretive guidance on the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.).

    What accommodation, if any, is reasonable is dependant upon the circumstances of the disability, the limitations imposed by the disability, and the position involved. Examples of possible accommodations include: (1) Making facilities accessible to and usable by disabled individuals; (2) Job restructuring; (3) Offering part-time or modified work schedules; (4) Reassigning to a vacant position; (5) Acquiring or modifying equipment or devices; (6) Adjusting or modifying examinations, training materials or policies; and (7) Providing qualified readers or interpreters. A finite paid or unpaid leave of absence, or holding a position open for an employee, may be a reasonable accommodation so long as the employee likely can resume his or her duties. Alternatively, offering an employee a vacant position, even if the position pays less than the disabled employee’s former position, may constitute a reasonable accommodation if the employee can no longer perform the former job duties.

    Bear in mind, an employer need not choose the "best" accommodation or the accommodation the employee seeks. Rather, the employer has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the one which is easier for it to provide. However, absent evidence of undue hardship, the employee’s requested accommodation should be given preference.


    What does this mean for California employers? A California employer should take care to monitor not only whether any of its employees has an actual disability under the FEHA, but also to determine whether any employee is regarded as being disabled by supervisors or co-workers. Under either scenario, the employer should immediately engage in a good faith interactive process with the employee to:

    • identify the disability or perceived disability;
    • elicit from the employee any and all information relating to the disability and any limitations on his or her ability to perform the essential functions of the job as a result of the disability or perceived disability;
    • discuss possible accommodations, if any, that would allow the employee to perform the essential functions of the position; and
    • if no such accommodations exist so as to allow the employee to perform the essential functions of their current position, explore other available positions or a possible leave of absence.

    The obligations of the employer and employee with respect to the interactive process are ongoing. Thus, the employer should ensure that the parties regularly meet to discuss the status of the employee’s disability or medical condition, the effectiveness of the accommodations provided, and whether the accommodation or accommodations need to be modified, altered or discontinued. Finally, prudent employers are well served by thoroughly documenting their interactive process and reasonable accommodation efforts. This, of course, will guard (or at least help defend) against claims that the employer failed to engage in the interactive process or reasonably accommodate a disabled or “regarded as” disabled employee.