In daily life, most of us make judgments about others based on their appearance. Recent clarifications to a California State Code caution employers against making assumptions about a person’s ability to do a job even where a disability is clearly visible.
Don’t presume you can judge a person’s fitness by eyeballing their obvious handicap, says a Second District Court of Appeal. A higher level of due diligence is needed, noted the jurists — one that demonstrates that an employer has engaged in an “interactive process” with an applicant or employee with an actual or perceived disability before deciding whether he can or cannot perform a job.
Significantly, the decision also establishes that an employer has a duty to provide reasonable accommodation to a worker who is merely perceived as disabled, even if he or she is not actually disabled.
The court’s June 2 ruling in Gelfo vs. Lockheed Martin Corp. establishes that an employer cannot rely on outdated medical records, workers’ compensation records, or its perception of an individual’s disabilities to determine whether an employee is able to perform the essential functions of a job.
Relying on the California Fair Employment and Housing Act (FEHA), Gelfo emphasizes that an employer has an affirmative duty to engage in the interactive process with an employee or applicant with a known disability. The court interpreted “known” to include those instances in which an employer is aware or perceives a disability, whether such perception is erroneous or not. The court noted that although it is the employee’s burden to initiate the process, “no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation.” Interestingly, this appears to contradict the plain language of FEHA, which provides that an employer must engage in a “timely, good faith interactive process … for a reasonable accommodation in response to a request for reasonable accommodation by an employee or applicant …”
Smart Business spoke with David P. Wolds at Procopio, Cory, Hargreaves & Savitch LLP, about the decision’s impact on California employers and their work force.
How important is this decision?
This decision is extremely important because no published California case before it has ever considered whether an employer has a duty under FEHA to provide a reasonable accommodation to an applicant or employee who is not actually disabled. The Gelfo ruling answers this question in the affirmative. The decision also clarifies that an employer has an affirmative duty to engage in an interactive process to determine whether an applicant or employee needs an accommodation even if the employee does not request it. An employer’s obligation appears to be triggered if it merely suspects that an individual may be disabled.
How does this case expand on the term ‘reasonable accommodation’?
The case does not expand on the term ‘reasonable accommodation’ but rather expands the class of persons who are entitled to it. Now applicants and employees who are merely perceived as disabled but do not actually suffer from a disability are entitled to a reasonable accommodation under FEHA.
How important is this ruling for employees?
As I mentioned, Gelfo expands the class of employees who are entitled to reasonable accommodation. It’s also important because this ruling entitles such employees to a greater level of evaluation regarding their fitness to work. It says that employers need to focus on current information about a candidate’s qualifications, not an obvious evidence of a disability, when deciding to offer or deny employment. In doing so, a firm must engage in a timely, good faith discussion with the person — in other words, conduct an individualized analysis of a person’s ability to do a job. Both the applicant and the employer need to discuss potential accommodations the candidate might need to perform the job, and the hiring firm has to provide these if it is needed.
What kind of mindset must an employer possess when reviewing disability issues?
Practically speaking, employers must be careful when evaluating an applicant or an employee returning to a current position or applying for a new one. The bottom line is that employers should not unilaterally refuse an employee work based on an actual or perceived disability. Employers should engage in the interactive process and obtain current medical data and be cautious about relying on old information. Whether the employee can be reasonably accommodated in the new position must be determined on the basis of a current fitness review.
DAVID P. WOLDS is the Labor, Employment and Benefits Practice Group Leader in the San Diego office of Procopio, Cory, Hargreaves & Savitch LLP. Reach him at (619) 525-3875 or at [email protected].
