California Civil Jury Instructions (CACI) (2017)

2546. Disability Discrimination—Reasonable Accommodation—Failure to Engage in In- teractive Process (Gov. Code, § 12940(n))

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2546.Disability Discrimination—Reasonable
Accommodation—Failure to Engage in Interactive Process (Gov.
Code, § 12940(n))
[Name of plaintiff] contends that [name of defendant] failed to engage in a
good-faith interactive process with [him/her] to determine whether it
would be possible to implement effective reasonable accommodations so
that [name of plaintiff] [insert job requirements requiring accommodation].
In order to establish this claim, [name of plaintiff] must prove the
following:
1. That [name of defendant] was [an employer/[other covered entity]];
2. That [name of plaintiff] [was an employee of [name of defendant]/
applied to [name of defendant] for a job/[describe other covered
relationship to defendant]];
3. That [name of plaintiff] had [a] [select term to describe basis of
limitations, e.g., physical condition] that was known to [name of
defendant];
4. That [name of plaintiff] requested that [name of defendant] make
reasonable accommodation for [his/her] [e.g., physical condition]
so that [he/she] would be able to perform the essential job
requirements;
5. That [name of plaintiff] was willing to participate in an
interactive process to determine whether reasonable
accommodation could be made so that [he/she] would be able to
perform the essential job requirements;
6. That [name of defendant] failed to participate in a timely good-
faith interactive process with [name of plaintiff] to determine
whether reasonable accommodation could be made;
7. That [name of plaintiff] was harmed; and
8. That [name of defendant]’s failure to engage in a good-faith
interactive process was a substantial factor in causing [name of
plaintiff]’s harm.
New December 2007; Revised April 2009, December 2009
Directions for Use
In elements 3 and 4, select a term to describe the source of the plaintiff’s
limitations. It may be a statutory term such as “physical disability,” “mental
disability,” or “medical condition.” (See Gov. Code, § 12940(a).) Or it may be a
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general term such as “condition,” “disease,” or “disorder.” Or it may be a specific
health condition such as “diabetes.”
Modify elements 3 and 4, as necessary, if the employer perceives the employee to
have a disability. (See Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34,
61, fn. 21 [43 Cal.Rptr.3d 874].)
In element 4, specify the position at issue and the reason why some reasonable
accommodation was needed. In element 5, you may add the specific
accommodation requested, though the focus of this cause of action is on the failure
to discuss, not the failure to provide.
For an instruction on a cause of action for failure to make reasonable
accommodation, see CACI No. 2541, Disability Discrimination—Reasonable
Accommodation—Essential Factual Elements. For an instruction defining
“reasonable accommodation,” see CACI No. 2542, Disability
Discrimination—“Reasonable Accommodation” Explained.
There is a split of authority as to whether the employee must also prove that
reasonable accommodation was possible before there is a violation for failure to
engage in the interactive process. (Compare Wysinger v. Automobile Club of
Southern California (2007) 157 Cal.App.4th 413, 424–425 [69 Cal.Rptr.3d 1]
[jury’s finding that no reasonable accommodation was possible is not inconsistent
with its finding of liability for refusing to engage in interactive process] and
Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 243
[35 Cal.Rptr.3d 837] with Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008)
166 Cal.App.4th 952, 980–985 [83 Cal.Rptr.3d 190] [employee who brings a
section 12940(n) claim bears the burden of proving a reasonable accommodation
was available before the employer can be held liable under the statute]; see also
Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018–1019 [93
Cal.Rptr.3d 338] [attempting to reconcile conflict].)
Sources and Authority
• Good-Faith Interactive Process. Government Code section 12940(n).
Federal Interpretive Guidance Incorporated. Government Code section
12926.1(e).
• Interactive Process. The Interpretive Guidance on title I of the Americans With
Disabilities Act, title 29 Code of Federal Regulations Part 1630 Appendix.
• An employee may file a civil action based on the employer’s failure to engage
in the interactive process. (Claudio, supra, 134 Cal.App.4th at p. 243.)
• “Two principles underlie a cause of action for failure to provide a reasonable
accommodation. First, the employee must request an accommodation. Second,
the parties must engage in an interactive process regarding the requested
accommodation and, if the process fails, responsibility for the failure rests with
the party who failed to participate in good faith. While a claim of failure to
accommodate is independent of a cause of action for failure to engage in an
interactive dialogue, each necessarily implicates the other.” (Gelfo, supra, 140
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Cal.App.4th at p. 54, internal citations omitted.)
• “FEHA requires an informal process with the employee to attempt to identify
reasonable accommodations, not necessarily ritualized discussions.” (Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 379 [184 Cal.Rptr.3d 9].)
• “FEHA’s reference to a ‘known’ disability is read to mean a disability of which
the employer has become aware, whether because it is obvious, the employee
has brought it to the employer’s attention, it is based on the employer’s own
perception—mistaken or not—of the existence of a disabling condition or,
perhaps as here, the employer has come upon information indicating the
presence of a disability.” (Gelfo, supra, 140 Cal.App.4th at p. 61, fn. 21.)
• “Once initiated, the employer has a continuous obligation to engage in the
interactive process in good faith. ‘Both employer and employee have the
obligation “to keep communications open” and neither has “a right to obstruct
the process.” [Citation.] “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.” [Citation.]’ ” (Swanson v. Morongo Unified
School Dist. (2014) 232 Cal.App.4th 954, 971–972 [181 Cal.Rptr.3d 553].)
• “[Employer] asserts that, if it had a duty to engage in the interactive process,
the duty was discharged. ‘If anything,’ it argues, ‘it was [employee] who failed
to engage in a good faith interactive process.’ [Employee] counters [employer]
made up its mind before July 2002 that it would not accommodate [employee]’s
limitations, and nothing could cause it to reconsider that decision. Because the
evidence is conflicting and the issue of the parties’ efforts and good faith is
factual, the claim is properly left for the jury’s consideration.” (Gelfo, supra,
140 Cal.App.4th at p. 62, fn. 23.)
• “None of the legal authorities that [defendant] cites persuades us that the
Legislature intended that after a reasonable accommodation is granted, the
interactive process continues to apply in a failure to accommodate context. . . .
To graft an interactive process intended to apply to the determination of a
reasonable accommodation onto a situation in which an employer failed to
provide a reasonable, agreed-upon accommodation is contrary to the apparent
intent of the FEHA and would not support the public policies behind that
provision.” (A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 464 [100
Cal.Rptr.3d 449].)
• “[T]he verdicts on the reasonable accommodations issue and the interactive
process claim are not inconsistent. They involve separate causes of action and
proof of different facts. Under FEHA, an employer must engage in a good faith
interactive process with the disabled employee to explore the alternatives to
accommodate the disability. ‘An employee may file a civil action based on the
employer’s failure to engage in the interactive process.’ Failure to engage in this
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process is a separate FEHA violation independent from an employer’s failure to
provide a reasonable disability accommodation, which is also a FEHA violation.
An employer may claim there were no available reasonable accommodations.
But if it did not engage in a good faith interactive process, ‘it cannot be known
whether an alternative job would have been found.’ The interactive process
determines which accommodations are required. Indeed, the interactive process
could reveal solutions that neither party envisioned.” (Wysinger, supra, 157
Cal.App.4th at pp. 424–425, internal citations omitted.)
• “We disagree . . . with Wysinger’s construction of section 12940(n). We
conclude that the availability of a reasonable accommodation (i.e., a
modification or adjustment to the workplace that enables an employee to
perform the essential functions of the position held or desired) is necessary to a
section 12940(n) claim. [¶] Applying the burden of proof analysis in Green,
supra, 42 Cal.4th 254, we conclude the burden of proving the availability of a
reasonable accommodation rests on the employee.” (Nadaf-Rahrov, supra, 166
Cal.App.4th at pp. 984–985.)
• “We synthesize Wysinger, Nadaf-Rahrov, and Claudio with our analysis of the
law as follows: To prevail on a claim under section 12940, subdivision (n) 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. An employee cannot necessarily be
expected to identify and request all possible accommodations during the
interactive process itself because ‘ “ ‘[e]mployees do not have at their disposal
the extensive information concerning possible alternative positions or possible
accommodations which employers have. . . .’ ” ’ However, as the Nadaf-Rahrov
court explained, once the parties have engaged in the litigation process, to
prevail, the employee must be able to identify an available accommodation the
interactive process should have produced: ‘Section 12940[, subdivision](n),
which requires proof of failure to engage in the interactive process, is the
appropriate cause of action where the employee is unable to identify a specific,
available reasonable accommodation while in the workplace and the employer
fails to engage in a good faith interactive process to help identify one, but the
employee is able to identify a specific, available reasonable accommodation
through the litigation process.’ ” (Scotch, supra, 173 Cal.App.4th at pp.
1018–1019.)
Secondary Sources
8 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 936(2)
Chin, et al., California Practice Guide: Employment Litigation, Ch. 9-C, Disability
Discrimination—California Fair Employment and Housing Act (FEHA),
¶¶ 9:2280–9:2285, 9:2345–9:2347 (The Rutter Group)
1 Wrongful Employment Termination Practice (Cont.Ed.Bar 2d ed.) Discrimination
Claims, § 2.79
2 Wilcox, California Employment Law, Ch. 41, Substantive Requirements Under
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Equal Employment Opportunity Laws, § 41.51[3][b] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.35[1][a] (Matthew Bender)
1 California Civil Practice: Employment Litigation, § 2:50 (Thomson Reuters)
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