In Gelfo v. Lockheed Martin Corporation, (— Cal.Rptr.3d —, 2006 WL 1515668, Cal.App. 2 Dist., June 2, 2006), the court held that an employer must reasonably accommodate an applicant or employee who is not actually physically disabled but whom the employer regards as disabled and must engage in an informal interactive process with the applicant or employee to determine effective reasonable accommodations.
Facts
Charles Gelfo (“Gelfo”) was working as a metal fitter for Lockheed Martin Corporation (“Lockheed”) when he filed a workers’ compensation claim seeking benefits for a work-related injury to his lower back. Gelfo was laid off shortly after his injury. Gelfo’s doctor advised that he should not participate in heavy lifting, repetitive bending, or prolonged sitting or standing and recommended that he participate in retraining. Gelfo accepted Lockheed’s invitation to participate in a training class to become a plastic parts fabricator and assembler. Lockheed did not guarantee employment upon completion of the class. While participating in the class, Gelfo performed the regular physical duties of a fabricator, including bending, sitting and standing. Lockheed offered each trainee a position as a fabricator at the conclusion of the class. Two days later, Lockheed revoked its offer to Gelfo claiming that the physical demands of the position were incompatible with the restrictions imposed by his doctor as reflected in his medical file.
Although Gelfo informed Lockheed that he no longer had any physical limitations, Lockheed’s placement review committee met to consider possible accommodations in light of the restrictions contained in his medical file. Lockheed ultimately decided that no reasonable accommodations were available. Gelfo asked Lockheed to reconsider asserting that it was misinformed about his current medical condition. He notified Lockheed that both he and his doctor agreed that he could perform the job, he was currently working at a job that required him to perform the same functions as the fabricator position, and he needed no accommodations to successfully perform the job. Lockheed declined to reverse its previous decision that no reasonable accommodations were available which would allow Gelfo to perform the job of a fabricator.
Gelfo filed a lawsuit alleging that Lockheed violated California’s Fair Employment and Housing Act (FEHA) by discriminating against him because of his disability, by failing to accommodate his disability, and by failing to engage in a timely good faith interactive process to determine effective reasonable accommodations. The trial court dismissed the bulk of Gelfo’s claims concluding that, because he did not have an “actual” disability, Lockheed had no legal duty to provide a reasonable accommodation or to engage in an interactive dialogue with him. The sole issue submitted to the jury was whether Lockheed violated the FEHA by refusing to hire Gelfo because it regarded him as physically disabled. The jury found in favor of Lockheed. Gelfo appealed the trial court’s decision to the California Court of Appeal.
Decision
Under the FEHA, a person is “physically disabled” if he or she (1) currently has a physiological condition that affects a specific bodily system and limits a major life activity, (2) has a record or history of such a condition, or (3) is regarded by or treated by an employer as currently or previously having “any condition that makes achievement of a major life activity difficult, or as having, or having had, a physiological condition that is not presently disabling, but may become so.” (Gov. Code § 12926, subds. (k)(1)(A), (B), (3), (4), (5).) In order to qualify as a member of the class of persons protected from disability discrimination under the FEHA, Gelfo was required to demonstrate that he fell within one of the definitions of “physically disabled” contained in section 12926. The Court of Appeal concluded that Gelfo failed to demonstrate that he was “actually” physically disabled because he did not show that his injury or physical condition made it difficult for him to work or perform any other major life activity. The Court noted that, in Gelfo’s pursuit of the fabricator position, he actually tried to prove that he was not “actually” physically disabled by emphasizing to Lockheed that he felt fine and could perform the work required of that position.
The Court, however, found that Gelfo did meet the definition of physically disabled under section 12926 because Lockheed admitted that it regarded him as disabled. Lockheed consistently maintained that it withdrew the job offer because it perceived Gelfo as suffering from a disabling physical condition that either limited his ability to perform the work of a fabricator or would likely limit his ability to perform in the future. By including those who are “regarded as” disabled in the definition of “physically disabled,” the Legislature sought to protect individuals who are mistakenly believed to be limited by a mental or physical disability. The Court concluded Gelfo fell within the class of persons the Legislature sought to protect and should be allowed to proceed on his employment discrimination claim.
An employer independently violates the FEHA if it (1) fails to provide a reasonable accommodation for an applicant’s or employee’s known disability, or (2) fails to “engage in a good faith interactive process to determine an effective accommodation, once it is requested.” (Gov. Code § 12940 subd. (a), (m), (n)) Lockheed argued that the right to reasonable accommodation is available only to an applicant or employee who is “actually disabled,” and therefore, it was not required to make a reasonable accommodation or engage in an interactive process to determine an effective accommodation because Gelfo was merely “regarded as” disabled.
The Court found that the FEHA does not distinguish between the different classifications of “physical disability” in section 12926 when applying the requirement that employers make reasonable accommodations. For an employee, being perceived as disabled may be just as disabling as being “actually” disabled. An employee that is “regarded as” disabled may be the target of the discriminatory attitudes of others, including his or her employer. In order to “further the societal goal of eliminating discrimination,” the reasonable accommodation provision must be interpreted in a way that provides disabled individuals with the greatest protection. The Court concluded that the FEHA imposes a duty on employers to make reasonable accommodations for those applicants or employees who are not actually disabled but whom the employer regards as disabled.
Similarly, the Court found that an employer must also engage in an informal dialogue with an applicant or employee that is “regarded as” disabled in order to determine effective reasonable accommodations. The burden is on the applicant or employee to initiate the process by requesting an accommodation. The interactive process required under the FEHA is designed to bring together an applicant or employee and an employer so that the parties may speak freely and determine “whether a reasonable, mutually satisfactory accommodation is possible to meet their respective needs.” If as a result of the interactive process, the employer determines that no accommodation is necessary, the employer does not have to provide an accommodation to the applicant or employee.
The Court of Appeal sent the case back to the trial court to allow Gelfo to proceed on his claims that Lockheed violated the FEHA by discriminating against him because of his disability, by failing to make a reasonable accommodation for his disability, and by failing to engage in an interactive process regarding reasonable accommodations.
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