Failing to Removing Barriers: Failure to Engage in an Interactive Process
Updated: Nov 9
California has legislation in place to protect workers from discrimination and harassment known as FEHA or the California Fair Employment and Housing Act. In conjunction with the prevention of discrimination and harassment, FEHA also removes barriers by allowing those with physical or mental disabilities to obtain or maintain their jobs. This is done by seeking reasonable accommodations through a good faith interactive process.
What is a good faith interactive process?
A good faith interactive process is an informal process that’s used in determining what kinds of reasonable accommodations would enable a disabled employee to remain employed. Typically, this is a verbal discussion held between you and your employer to find out what job-related restrictions are created by your disability. Try to ensure that this discussion is in writing or at least that your request for this discussion is made in writing.
Who needs to engage in a good faith interactive process?
Both you and your employer need to engage in a good interactive process. As soon as it’s known that you have a disability with job-related restrictions, you and your employer must begin this informal process. The common misconception is that your employer has to make the first move, but the truth is that it depends on different factors.
When do I have to initiate a good faith interactive process?
When your disability or need for reasonable accommodation is not obvious, and you haven’t provided your employer with reasonable medical documentation confirming the existence of a disability and the need for reasonable accommodation. (1)
Who needs to identify reasonable accommodation?
Although this is an interactive process between you and your employer, there has been a split of authority as to whether the employee must also prove that reasonable accommodation was possible. In Scotch v. Art Institute of California, the jury contended that the employee must identify a reasonable accommodation that was available at the time of the interactive process. In this particular case, the requested accommodation was not reasonable.
What are examples of reasonable accommodations?
Examples of reasonable accommodations include making existing facilities accessible; restructuring the job; modifying your work schedule; acquiring or modifying equipment; changing procedures, training materials, or policies; providing assistive readers or interpreters; and reassignment to an open position.
What if my employer failed to engage in the interactive process?
It’s unlawful for your employer to fail in engaging in the interactive process. The point of the process is to grant those with disabilities an equal opportunity to work and earn a living.
If you have a covered disability, you can perform the essential job functions, and your employer failed to engage in a good faith interactive process, then you may be able to recover damages such as back pay and non-economic damages. Call us immediately for a free consultation. Our employment law attorney will go over the details of your case.
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Section 11069 - Interactive Process, https://casetext.com/regulation/california-code-of-regulations/title-2-administration/division-41-department-of-fair-employment-and-housing/chapter-5-fair-employment-and-housing-council/subchapter-2-discrimination-in-employment/article-9-disability-discrimination/section-11069-interactive-process
SCOTCH v. ART INSTITUTE OF CALIFORNIA ORANGE COUNTY INC, https://caselaw.findlaw.com/ca-court-of-appeal/1446286.html