CACI 2546 Disability Discrimination—Reasonable Accommodation—Failure to Engage in Interactive Process (Gov. Code, § 12940(n))
California Civil Jury Instructions CACI
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/nonbinary pronoun] 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/nonbinary pronoun] [e.g., physical condition] so that [he/she/nonbinary pronoun] 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/nonbinary pronoun] 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 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 Nieman 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.” (Gelfo, supra, 140 Cal.App.4th at p. 54, internal citations omitted.)
•“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.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242 [206 Cal.Rptr.3d 841].)
•“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].)
•“The point of the interactive process is to find reasonable accommodation for a disabled employee, or an employee regarded as disabled by the employer, in order to avoid the employee’s termination. Therefore, 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.” (Moore, supra, 248 Cal.App.4th at pp. 243–244, original italics.)
•“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.)
•“Typically, the employee must initiate the process ‘unless the disability and resulting limitations are obvious.’ ” (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169 [217 Cal.Rptr.3d 258].)
•“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 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 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.)