Los Angeles Employer Facing Stiff Penalties for Reasonable Accommodation Failure
We all know it is true; but, knowing it and doing it are very different realities. Good, detailed, accurate and updated job descriptions and good, detailed, accurate and updated written policies can go a long way to protect employers from a wide range of claims and (more importantly) can help ensure a more productive and focused work environment.
A Los Angeles employer is now looking at a jury award of close to $3 million for a former employee on reasonable accommodation and interactive process claims. The HR 101 takeaway is that these situations can often be avoided by focusing on essentials like job descriptions that accurately depict the actual duties and responsibilities (including the physical requirements) and handbook policies that explain in detailed but comprehensible terms that the organization will provide an interactive process to determine if a reasonable accommodation can be made. Progressing to HR 102, strongly consider including the Interactive Process/Reasonable Accommodation policy as an acknowledgement and make sure that all supervisory staff is fully trained on it.
For more on this case, please continue to our blog…
As a reminder, reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.
LA Jury Awards $2.9 Million for Failure to Provide Reasonable Accommodation
A Los Angeles jury rejected an employee’s disability discrimination claim but found in her favor on her reasonable accommodation and interactive process claims. The jury awarded her $2,899,670, and the court awarded $503,273.50 in attorneys’ fees. The employer appealed the judgment on the grounds that the employee failed to establish a reasonable accommodation was available for her disability.
Anahit Shirvanyan worked for eight years as a kitchen coordinator for the Child Development Center at Los Angeles Valley College, a part of the Los Angeles Community College District. Her job duties included preparing breakfast and lunch, bringing meals in large bowls and milk and juice to classrooms using a large cart, retrieving and cleaning dishes, washing 5-pound pots, doing laundry, and cleaning the kitchen.
In 2014, Shirvanyan was diagnosed with nerve damage and carpal tunnel syndrome in her arm and wrist. She began wearing a brace daily, needed help in the kitchen because of her injuries, and reduced her work hours because of pain. She notified her supervisors about her carpal tunnel syndrome and wrist pain. Although she participated in physical therapy, she was often in tears by the end of her shift because of the pain, complained of pain daily to her coworkers, and winced or favored one arm while completing her job duties.
Shirvanyan requested various accommodations for her wrist conditions, but each request was denied. She asked for additional help in the kitchen, an electric can opener, and assistance with hand-washing dishes or to be allowed to use paper plates. In addition, she asked to help teachers supervise children instead of working in the kitchen. The district informed her she didn’t have the required skills for that work.
On December 18, 2015, Shirvanyan suffered a shoulder injury while opening the door of a heavy industrial dishwasher, and she left work early because of the pain. She gave the district a medical certification from her healthcare provider stating she couldn’t return to work until March 7, 2016. The district didn’t ask her about whether, when, or under what conditions she would be returning to work after her shoulder injury, and she didn’t return to work at any time after the injury.
A psychological expert reviewed Shirvanyan’s medical records and conducted an extended in-person interview with her in October 2018. He diagnosed her as suffering from moderate to severe major depressive disorder. When asked whether her perception of being treated unfairly and “experiences at her work at the college led to any sort of depressive disorder,” he explained:
It’s an unfortunate confluence of events, that she developed pain while working and claimed to have reported that, requested assistance. None was forthcoming, according to . . . Shirvanyan. And over time, her pain became more pronounced, ultimately leading to her being taken off work and not returning. And she maintained that once she lost her job, her depression set in and her pain become worse.
Shirvanyan filed a lawsuit against the district for (1) disability discrimination, (2) failure to engage in the interactive process, and (3) failure to provide a reasonable accommodation. She alleged that because of those violations, she developed major depressive disorder, resulting in both emotional distress and economic loss.
Based on the trial court’s view that the availability of a reasonable accommodation isn’t an element of an interactive process claim, the court rejected the following special instruction proffered by the district: “To prove her claim that [the] District failed to engage in the interactive process, Plaintiff must identify a reasonable accommodation that would have been available at the time the interactive process should have started.”
The jury found in favor of Shirvanyan on her reasonable accommodation and interactive process claims. The jury awarded $124,670 in past and future economic damages and $2,775,000 in noneconomic damages, for a total of $2,899,670. The court awarded her $503,273.50 in attorneys’ fees. The district appealed.
Employer’s Appeal Partially Successful
On appeal, the district argued that the availability of a reasonable accommodation is an essential element of an interactive process claim and that the evidence didn’t support a finding that a reasonable accommodation was available. The appellate court concluded the California Fair Employment and Housing Act (FEHA) requires an employee to identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.
Next, the court considered the district’s argument there was insufficient evidence to support a finding that a reasonable accommodation was available at the time it should have engaged in the interactive process. Shirvanyan argued there were three types of reasonable accommodation:
- Restructuring her position;
- Preferential reassignment to another position; and
- A finite leave of absence.
She further claimed the district failed to engage in an interactive process in response to any of those requests.
The appellate court concluded that substantial evidence supported the finding that finite medical leave was an available reasonable accommodation for Shirvanyan’s carpal tunnel and wrist injury at the time she asked for it. Before she suffered from a torn rotator cuff in December 2015, her healthcare provider anticipated she would need approximately two months to recover from the nerve injuries. Based on that, the jury could have reasonably inferred that before she injured her shoulder, a finite leave of absence could have permitted her wrist to recover so she could return to work.
The appellate court found, however, there was no evidence to suggest a finite leave would have been a reasonable accommodation for Shirvanyan’s shoulder injury. When her healthcare provider wrote a medical certification placing her off work for a few months, he was unaware of the extent of her shoulder injury. Subsequently, based on additional diagnostics, another healthcare provider found that her injury still prevented her from returning to work over 2 years later. No witnesses offered any testimony on any specific time frame on when she would be able to return to work.
Accordingly, the appellate court concluded the evidence didn’t support that a “finite” term of leave was an available accommodation. Furthermore, under the FEHA, a medical leave of many years isn’t a reasonable accommodation.
The appellate court concluded that restructuring Shirvanyan’s duties as a kitchen assistant wasn’t a reasonable accommodation that was available for her shoulder injury. The evidence showed she remained unable to lift her arms years after her shoulder injury and thus couldn’t have engaged in many of the essential job duties. Further, she failed to offer any evidence there was any vacant position for which she was qualified. The FEHA doesn’t require reassignment if there is no vacant position the employee is qualified to fill.
Accordingly, the appellate court concluded there was insufficient evidence to support the jury’s verdict on Shirvanyan’s reasonable accommodation and interactive process claims to the extent they relied on a failure to accommodate or engage in the interactive process over her shoulder injury.
Appellate Court Orders Retrial
Sufficient evidence didn’t support the jury’s verdict on Shirvanyan’s failure to accommodate and interactive process claims to the extent they involved the district’s response to her shoulder injury. But it didn’t necessarily follow that the jury’s verdict didn’t entitle her to recovery based on the district’s response to her wrist injury.
Shirvanyan offered evidence regarding the district’s response to both her wrist and shoulder injuries, and the verdict form didn’t require the jury to provide the factual basis for its verdict. Thus, it’s unclear whether the jury’s verdict was based on the conclusion that the district mishandled both her wrist injury and shoulder injury or that the district’s response to just one of those injuries violated the FEHA. The appellate court held that its conclusion Shirvanyan shouldn’t receive a recovery based on the district’s response to her shoulder injury requires a retrial to allow the jury to determine whether the district’s response to her wrist injury constituted a failure to accommodate or engage in the interactive process in violation of the FEHA and whether she suffered any damages as a result.
The district argued that a retrial would be futile because the evidence couldn’t support a finding of damages from its response to Shirvanyan’s wrist injuries. The appellate court disagreed. The record contained evidence from which the jury could conclude on retrial that the district’s response to her wrist injury caused her emotional distress. Shirvanyan testified she was upset in response to her former supervisor’s comments when she complained of wrist pain and when her supervisor refused repeated requests for an accommodation of her wrist condition. The court reasoned her testimony could provide a sufficient basis for a jury to award damages if they conclude the district is liable based on its handling of her wrist injury.
The appellate court reversed the judgment and attorneys’ fees award and sent the case back for a retrial only on Shirvanyan’s reasonable accommodation and interactive process claims with regard to the district’s response to her wrist injury. Anahit Shirvanyan v. Los Angeles Community College District (California Court of Appeal, 2nd Appellate District, 11/30/20, published 12/29/20).
Although the district avoided the $2.9 million jury verdict, the employee will have another opportunity to retry her claim that it failed to provide a reasonable accommodation and engage in the interactive process with regard to her wrist injury. This case serves as a stark reminder of the significant potential liability employers face for failing to engage in an interactive dialogue or provide a reasonable accommodation for an employee’s disability.
If an employee has a disability, you must engage in a dialogue with her to determine an effective accommodation. If you reject the employee’s requested accommodation, you must consider other alternative accommodations that would allow her to perform the essential functions of her position.
Article provided by content partner BLR. Author Cathleen S. Yonahara is a partner at Freeland Cooper & Foreman LLP in San Francisco.