Rose Mediation's ADR Newsletter - October 2013

Ken Rose is the founder and President of Rose Mediation [www.rosemediation.us]. Through Rose Mediation, Ken serves as mediator of legal disputes throughout California and adjoining States, most particularly employment law matters, including wrongful termination, wage and hour, class actions, breach of contract, discrimination, harassment, retaliation, and misappropriation of trade secrets/unfair competition cases.

I trust you are well and enjoying the Fall season.

Earlier this month I was privileged to speak about mediation at the International Bar Association’s Annual Conference., held this year in Boston. I was on a panel with mediators and employment law specialists from France, UK, Malaysia, Germany, South Africa, Argentina, Pakistan, Singapore, and Nigeria. The panel discussion was intriguing. Each panelist addressed the role of mediation to resolve employment disputes in our respective countries. Needless to say, there are many similarities, but also many differences. But, the panel was unanimous that mediation is an effective tool to resolve workplace disputes.

This issue of Rose Mediation's ADR Newsletter examines the difficulty of predicting victory in disability discrimination lawsuits where the main issue is whether the employer met its legal obligations to reasonably accommodate, and why mediation can be a valuable method for resolving such cases. I welcome your comments.

Contact me to discuss any cases you believe can be resolved through mediation. I handle matters throughout California and adjoining States.

Mediation Can Be Effective in Resolving Reasonable Accommodation Disputes in Disability Discrimination Cases

"Reasonable accommodation" is one of (if not) the fundamental component(s) of Federal and State legislation barring workplace discrimination against individuals who have covered disabilities or religious beliefs. In both disability and religious employment discrimination litigation, most often the underlying battle concerns the employer’s legal duty to reasonably accommodate an employee’s disability or religious observance and practices.

Because reasonable accommodation cases present challenging applications of the facts to conflicting case law, the outcomes at trial and on appeal are not easily predictable. For this reason alone, the parties should be motivated to make best efforts to reach resolution before trial. Engaging a mediator familiar with employment discrimination law will greatly enhance the parties’ capacity to achieve an equitable settlement which the parties can help shape.

This article focuses on reasonable accommodation in the context of employment disability discrimination cases. A subsequent issue of Rose Mediation’s ADR Newsletter will look at reasonable accommodation issues that arise in religious discrimination litigation.

Federal and California Employment Law on Reasonable Accommodation for Individuals with Disabilities

The primary federal statute prohibiting disability discrimination in employment is the Americans with Disabilities Act (ADA), 42 U.S.C. - 12101 et seq. California extends workplace protections based on disability through the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code section 12940 et. seq.

An accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.See, EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (2002) (EEOC’s Enforcement Guidance), http://www.eeoc.gov/policy/docs/accommodation.html. As explained by the U.S. Supreme Court in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002):

"[The ADA] specifies that preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal. The Act requires preferences in the form of ‘reasonable accommodations’ that are needed for those with disabilities to obtain the same workplace opportunities that those without disabilities automatically enjoy."

Whereas the range of possible accommodations is in theory limited only by the human imagination, the ADA and FEHA only require "reasonable accommodation" to qualified individuals with disabilities that does not cause the employer "undue hardship." See, 42 U.S.C. -12112(b)(5); Cal. Gov’t Code section 12940(m).

There are several possible reasonable accommodations that an employer may have to provide in connection with modifications to the work environment or adjustments in how and when a job is performed. These include making existing facilities accessible, job restructuring, part-time or modified work schedules, acquiring or modifying equipment, reassignment to a vacant position, and allowing employees to take a medical leave of absence. See, EEOC’s Enforcement Guidance.

EEOC’s regulations articulate that to determine the appropriate reasonable accommodation it may be necessary to initiate an informal interactive process with the employee to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 CFR - 1630.2(o)(3). To demonstrate undue hardship, employers must make specific, individualized, non-speculative assessments of the difficulty or expense of a particular reasonable accommodation. See, EEOC’s Enforcement Guidance.

California law under the FEHA imposes even broader obligations on employers to reasonably accommodate individuals with covered disabilities. FEHA makes it a separate violation to fail to engage in the interactive process. Cal. Gov’t Code section 12940(n). New regulations concerning FEHA’s proscription of disability discrimination became effective December 30, 2012. The regulations state that an employer's obligation to engage in the interactive process is triggered when: (1) a request for accommodation is made by an applicant or employee with a known physical or mental disability or medical condition; (2) an employer is made of aware of the need for an accommodation by a third party or by observation; or (3) an employee with a disability exhausts leave under the California Family Rights Act ("CFRA"), the federal Family and Medical Leave Act ("FMLA"), or similar leave laws (e.g., California’s Pregnancy Disability Leave Law (PDL), Cal. Gov’t Code section 12945), and the employee's healthcare provider indicates further leave is needed. 2 Cal. Code Regs. (CCR) section 7294.0(b).

While the ADA, FEHA, and their corresponding regulations provide the legal framework, the application of these guidelines to real life requests for reasonable accommodation of employees with disabilities is an inexact science that can lead to knotty legal challenges. By way of example, most employers have received employee requests for medical leaves of absence as a reasonable accommodation. As discussed below, responding to these type requests involves a lot of guesswork and uncertainty about how far the employer must go to meet its legal obligation for reasonable accommodation .

Leave as a Reasonable Accommodation: A Vexing Problem

A disability discrimination issue that often finds its way into litigation is at what point does a covered employee’s need for extended leave (beyond that provided under the FMLA, CFRA, PDL, or employer policy)transform from a request for a reasonable accommodation to imposing an undue hardship on the employer under the ADA and FEHA.

Hypothetical: A middle manager disabled with a chronic back ailment needs 12 weeks of leave for treatment, surgery, and recuperation. The company grants the request as FMLA/CFRA leave. Other managers are assigned temporarily to handle the absent employee’s duties while continuing their regular duties. During surgery, serious complications arise that cause the employee to need a lengthier period of recuperation than originally anticipated. After 10 weeks of leave, the employee’s treating doctor informs HR that the employee needs an additional three weeks of leave—which would extend the total leave period to 15 weeks. The company grants the request as a reasonable accommodation under the ADA and FEHA. Next, one week before the employee’s scheduled return date, the doctor informs the company that the employee needs an additional three weeks of leave which would extend the total leave period to 18 weeks. Again, the company consents. This pattern then repeats itself twice more, extending the total company-approved leave period to 24 weeks. Once again, one week before the employee’s return date, the employee’s doctor informs the HR that the employee needs an additional eight weeks of leave for recuperation—which would extend the total leave period to 32 weeks. This time the company refuses for the stated reason that it has become an undue hardship to have other managers cover for the employee and the company now views the employee’s request as seeking indefinite leave. The company terminates the employee when he fails to return to work after the 24th week of leave. A lawsuit is filed.

Can the employee successfully sue the employer for violation of its reasonable accommodation obligations under the ADA and the FEHA? Answer: The outcome is difficult to predict. Here’s why.

Initial leave or additional leave can be a reasonable accommodation under the ADA and FEHA. See, 29 C.F.R. Pt. 1630 App. - 1630.2(o); 2 CRR - 7293.6 (p)(2)(M). But, no set minimum or maximum period of leave is required under the ADA or FEHA. See, e.g., 2 CRR section 7293.9(d)(3).

Rather, the employer has an obligation to assess each such requested accommodation for additional leave on a case-by-case basis. 2 CRR section 7293.9(d)(3). The California regulations state that such leave will only be considered a reasonable accommodation if "the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer and that "an employer is not required to provide an indefinite leave of absence as a reasonable accommodation." 2 CRR section 7293.9 (c). According to EEOC, the employer may not always strictly apply its maximum leave policy to deny such leave extension requests—i.e., an internal policy providing that employees will be automatically terminated after they have been on leave for a certain period of time. See, EEOC’s Enforcement Guidance, Q. 17; U.S. Airways, Inc. v. Barnett, 535 U.S. at 397-98 (an employer may be required to modify a disability-neutral policy to create a reasonable accommodation for an employee).

The critical question remains--How much additional leave is required by the ADA or the FEHA? In the words of one federal Court of Appeals, "[t]hese are difficult, fact intensive, case-by-case analyses, ill-served by per se rules or stereotypes." Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 650 (1st Cir. 2000). What may be a reasonable request for leave in one situation, may not be reasonable in another situation after accounting for the employee’s position, the financial impact of the leave on the employer, the employer’s resources, and the employer’s ability to conduct business while the employee is out on leave, among other considerations.

The plaintiff in Garcia-Ayala v. Lederle Parenterals, Inc. was an employee with breast cancer terminated under a company policy after being on approved medical leave for one year. The Court held that that plaintiff’s request for an additional four months of leave was reasonable and did not constitute an undue hardship. The Court pointed out that the company had been using temporary employees to cover for plaintiff in her absence and there was no evidence the temps increased the company’s labor costs or were unsatisfactory in their performance. In contrast, the U.S. Court of Appeals in Walton v Mental Health Assn. of Southeastern Pennsylvania, 168 F3d 661 (3rd Cir 1999), found that extending a 2 1/2-month leave to a manager hospitalized for depression was excessive and caused undue hardship due to employer’s fear the program that employee headed would fail for lack of funding and leadership.

Several California and other federal appellate courts also have addressed the employer’s duty to individuals with disabilities who seek additional leave as a reasonable accommodations. Here’s a sampling of the case law on this issue. Not surprisingly, the decisions are all over the place.

Cases where Court found requested leaves could be reasonable accommodations:

Sanchez v. Swissport, Inc., 213 Cal.App.4th 1331 (2013): Employer may have to offer additional leave under the FEHA as a reasonable accommodation for a pregnancy-related disability even after the employer has provided four months of leave under the PDL and allowed the employee to use an additional 12 weeks of CFRA leave for the pregnancy.

Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245 (2000): "Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future."

Hanson v. Lucky Stores, Inc., 74 Cal.App.4th 215 (1999): "[A] finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave the employee would be able to perform his or her duties. Indubitably, the seven extra months of leave constitutes a reasonable accommodation in this case."

Graves v. Finch Fruyn & Company , 457 F.3d 181 (2d Cir. 2006): Employee’s request for additional leave to schedule a doctor’s appointment to learn his chances for rehabilitation was a reasonable accommodation because the request would not require the employer to hold open employee's position indefinitely.

Nunes v. Wal-Mart Stores, 164 F.3d 1243 (9th Cir. 1999): Holding a job open for a lengthy period might not be an undue hardship given that the employer’s policy allowed employees to take up to one year of leave and it regularly hired seasonal employees to fill vacant positions.

Willingham v. Town of Stonington, 847 F. Supp. 2d 164 (D. Me. 2012): "Some employees, by the nature of their disability, are unable to provide an absolutely assured time for their return to employment, but that does not necessarily make a request for leave to a particular date indefinite."

Cases where Court rejected additional leave as a reasonable accommodation:

Henry v. United Bank , 686 F.3d 50 (1st Cir 2012): "An open-ended request for additional leave is just the type of wait-and-see approach that has been rejected as giving rise to a triable issue on reasonable accommodation."

Amsel v. Texas Water Dev. Bd., 464 F. App'x 395 (5th Cir. 2012): The employer was not required to provide indefinite leave as a reasonable accommodation to an employee unable to work at the time of his termination.

Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir 2012): Rejected employee’s claim that employer-hospital violated the ADA because it did not waive its attendance policy for her. Employee was discharged because of her attendance-related problems, including exceeding the number of permitted unplanned absences. The Court found that regular attendance is an essential job function for a neo-natal nurse under the ADA. The Court noted the employer’s attendance policy attempted to balance its employees’ needs for unplanned absences against its own need to provide patient care and the policy represented the "outer limit to the number of unplanned absences that [could] be tolerated without serious repercussions on patient care."

Robert v. Board of County Commissioner of Brown County, 691 F. 3d 1211, (10th Cir. 2012): An employee on leave must provide an employer with a reasonable estimate of when he or she can return to duty performing all essential functions for a leave of absence to be a reasonable accommodation under the ADA.

ERGO, whether in the context of request for additional medical leave or other accommodations, the great unsettled question is what can or should be considered a reasonable workplace accommodation of an individual’s disability that does not create an undue hardship, and who is entitled to receive it. The analysis must be made case-by-case and is as subjective as it is objective. Although there is case law, regulations and other administrative agency guidance defining reasonable accommodation, to a substantial degree the answer lies in the eyes of the beholder. Each of us (and that includes judges and jurors) have our own set of eyes and our own perception of what is "reasonable." Accordingly, If the parties elect to have the Court and the jurors determine the outcome of a reasonable accommodation dispute, they may be casting their fate to the wind. To quote Forrest Gump: "My momma always said, Life was like a box of chocolates. You never know what you're gonna get."

That’s precisely why a mediation may be the best vehicle for finding common ground in disability discrimination lawsuits where it is alleged the employer did not meet its duty of reasonable accommodation. Mediation provides a framework for creative problem solving. An experienced mediator can be the catalyst for the parties achieving a mutually acceptable solution and avoiding a rolling of the dice before the court and a jury.