California — Workplace Discrimination

California's Fair Employment and Housing Act (FEHA) defines "employer" to include any person regularly employing five or more persons, plus any person acting as an agent of an employer, the state, and any political or civil subdivision of the state and cities. This five-employee minimum is substantially lower than the federal Title VII threshold of 15 employees, bringing many smaller businesses within FEHA's scope. State and local government employers are covered regardless of employee count. The statute excludes religious associations or corporations not organized for private profit.

Source: Cal. Gov. Code § 12926(d)

California Government Code § 12940(a) makes it unlawful for an employer to discriminate based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status. The statute protects not only individuals who actually possess these characteristics, but also those who are perceived to have them or who associate with persons who have or are perceived to have them. FEHA's protected-class list is broader than federal Title VII in several ways, including explicit enumeration of gender identity and gender expression as separate categories.

Source: Cal. Gov. Code § 12940

California Government Code § 12940(n) makes it an unlawful employment practice for an employer or other covered entity to fail to engage in a timely, good faith interactive process with an employee or applicant who has requested reasonable accommodation for a known physical or mental disability or medical condition. This statutory obligation is distinct from—and in addition to—the substantive duty to provide reasonable accommodation under § 12940(m). An employer can face liability for failing to engage in the interactive process even when no reasonable accommodation ultimately exists.

Triggering the employer's duty

An employer must initiate the interactive process when an applicant or employee with a known disability requests reasonable accommodation. The employer must also initiate the process when it otherwise becomes aware of the need for an accommodation through a third party or by observation. Additionally, the employer must initiate the interactive process when it becomes aware of the possible need for an accommodation when an employee with a disability has exhausted leave under federal, state, or private employer leave provisions, but the employee's healthcare provider indicates that further accommodations are still necessary. California courts have held that employees are not required to speak any "magic words" or mention accommodation formally—the obligation arises once the employer becomes aware of the need to consider an accommodation.

Good faith participation

Both the employer and the employee share the obligation to cooperate in good faith during the interactive process. The process requires an individualized assessment of both the job at issue and the specific disability-related limitations of the individual that are directly related to the need for reasonable accommodation. The employer must either grant the requested accommodation or reject it after due consideration and initiate discussion regarding alternative accommodations. When the disability or need for accommodation is not obvious and the employee has not already provided reasonable medical documentation, the employer may request documentation confirming the existence of a FEHA disability and the need for accommodation. However, the employer may not ask for unrelated documentation—in most circumstances, an applicant's or employee's complete medical records are off-limits because those records may contain information unrelated to the need for accommodation. The employer must consider the preference of the applicant or employee to be accommodated, but has the right to implement an accommodation that is effective in allowing the person to perform the essential functions of the job.

Independent statutory violation

Under Government Code § 12940(n), failure to engage in the interactive process is itself a separate unlawful employment practice. California courts have recognized that a claim for failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, but each necessarily implicates the other. Responsibility for the failure of the interactive process rests with the party who failed to participate in good faith. If the employer fails to engage in good faith—for example, by refusing to discuss alternatives, demanding irrelevant medical records, or ignoring a request—the employer can be liable under subdivision (n) even if no reasonable accommodation was ultimately available.

Comparison to federal ADA

The California Attorney General has noted that the duty of an employer to provide a reasonable accommodation for an employee with a disability is broader under FEHA than under the federal ADA. Under FEHA, employers must reasonably accommodate individuals falling within any of FEHA's statutorily defined "disabilities," including those "regarded as" disabled, and must engage in the interactive process to determine effective accommodations. Additionally, under FEHA an employer's failure to engage in the interactive process can be set forth as a separate claim in a lawsuit brought for employment discrimination on the basis of disability.

Source: Cal. Gov. Code § 12940(m), (n)

Source: California Attorney General, Disability Rights in Employment, pp. 5–6