The Fair Employment and Housing Act (FEHA) prohibits discrimination by an employer against an employee with a physical or mental disability. (Gov. Code § 12940(a); Green v. State of California (“Green”) (2007) 42 Cal.4th 254, 262.) (However, an employer is not prohibited “from refusing to hire or discharging an employee with a physical or mental disability. . . where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.” (Gov. Code § 12940(a)(1); Green, 42 Cal.4th at 262.)"

The FEHA makes it unlawful for an employer “to fail to engage in a timely, good faith, process with the employee or applicant to determine reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940(n); see also Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193; Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 961–962.)

Legal Standard

The FEHA requires employers to reasonably accommodate a known disability of an employee, unless accommodation would cause undue hardship, and the interactive process is directed to identifying available accommodations. (Gov. Code, § 12940(m)-(n).)

“‘[I]nteractive process’ required by the FEHA is an informal process with the employee... to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively.” (Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1013.) “Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” (Id. at 1014.) An employer is not liable for failing to engage in the interactive process where a reasonable accommodation was provided. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229.)

An employee must request an accommodation, and the parties must engage in an interactive process regarding the requested accommodation. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252.) “Although no particular form of request is required, ‘[t]he duty of an employer reasonably to accommodate an employee’s handicap does not arise until the employer is “aware of respondent’s disability and physical limitations.”’” (Id.) The employer’s duty to engage in the interactive process is triggered when it knows of the employee’s disability; an employer must initiate the interactive process when an employee requests an accommodation, the employer becomes aware of the need for an accommodation through a third party or observation, or the employer becomes aware of the need for an accommodation because the disabled employee has exhausted leave. (Code Regs., tit. 2, § 11069(b).)

The obligation to engage in the interactive process is continuous; it is not exhausted by one effort. (Humphrey v. Memorial Hospitals Assn. (9th Cir. 2001) 239 F.3d 1128, 1138.)

Burden of Proof

A claim for failure to engage in the good faith interactive process is closely related to a claim for failure to accommodate, but they are separate causes of action. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971.) They involve different proof of facts. (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424, 69 Cal.Rptr.3d 1.) The purpose of the interactive process is to determine what accommodation is required. (Id. at p. 425, 69 Cal.Rptr.3d 1.)

To establish the failure to engage in the interactive process claim, Plaintiff must prove that

1. the plaintiff had a disability under the FEHA,
2. the plaintiff requested the defendant to make a reasonable accommodation for the disability that would permit the plaintiff to perform the essential job requirements,
3. the defendant failed to participate in a good faith interactive process to determine whether reasonable accommodation could be made, and
4. the plaintiff was harmed as a result of the defendant’s failure to engage in a good faith interactive process.

(Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 54.)

“To prevail on a claim... for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” (Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal. App. 4th 986, 1018.) “[T]he employee should be able to identify specific, available reasonable accommodations through the litigation process, and particularly by the time the parties have conducted discovery and reached the summary judgment stage.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379).)

Plaintiff need not necessarily have a FEHA-recognized disability to prevail on a claim for failure to engage in the interactive process. (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243; Gelfo v. Lockheed Martin Corp (2006) 140 Cal.App.4th 34, 59.) As long as the employer regards the employee as disabled, then a good faith interactive process is required. (Id. 244 (“a pretextual termination of a perceived-as-disabled employee's employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process”).)