An employee who was laid off while recovering from an on-the-job knee injury could go forward with a disability discrimination claim under California's Fair Employment and Housing Act (FEHA), a state appellate court ruled. The trial court had dismissed the claim before trial partly because it concluded that the employee had not shown that he could do his job with a reasonable accommodation.
The appellate court reversed, ruling that it was unclear whether the employer ever offered the employee an accommodation that would have enabled him to perform the essential duties of his position or had engaged in the interactive process, as required by the law.
The employer provided security staffing services to major corporations, including Apple and other technology companies. It hired the employee as a field supervisor assigned to Apple's main campus, starting on May 26, 2010. His duties included supervising mobile officers and security specialists on his shift, responding to security calls and client requests, driving, and providing security for top-level employees. The physical requirements of the job included walking four to six hours per day, standing seven hours a day, climbing, stooping, bending, kneeling and lifting up to 50 pounds.
On June 2, 2010—eight days after he was hired—while running to answer a medical call with four co-workers, the employee tripped over a curb, twisted his left knee, heard a loud popping noise and experienced severe pain in his left knee.
Despite having knee pain, the employee continued to work until he became eligible for health insurance benefits after his probationary period expired. On Oct 14, 2010, he saw an orthopedic surgeon who diagnosed a torn meniscus.
On more than one occasion between mid-October and mid-November 2010, the employee claimed that he asked for work that involved less standing and physical activity, but his supervisors told him that there was no other work for him to do.
On Nov. 17, 2010, the plaintiff went on leave because he could not tolerate the pain any longer. His doctor said that he could return to work the following day on modified duties, which would consist of mostly seated work, and no lifting, pulling or pushing over five pounds. The doctor estimated that the employee would need modified work for two months.
The employee was not offered modified work.
In August or September 2011, Apple told the employer that it planned to cut its budget for the company's services, which prompted a reduction in force. The employer eliminated four of the 19 supervisor positions at the site where the employee worked, and, because the employee was ranked 16th of the 19 supervisors, his position was one of the ones that was eliminated, and he was laid off. Following the reduction in force, the supervisors who remained at the site absorbed the employee's duties.
After the employer eliminated the four supervisory positions, it found other positions for two of the supervisors who had ranked lower than the employee in its evaluation process. Rather than lay them off, the employer retained them, but demoted them to patrol officers.
The employee subsequently filed a lawsuit, alleging, among other claims, that he was terminated because of his knee injury and disability. The trial court dismissed the claim before trial, and the employee appealed.
Employee Must Be Able to Perform Duties of Job
FEHA makes it an unlawful employment practice to discharge an employee because of a physical or mental disability or medical condition. The employer has an obligation to make a reasonable accommodation for an employee's known physical or mental disability and must engage in a timely, good-faith, interactive process with the employee to determine effective reasonable accommodations.
FEHA, however, does not prohibit an employer from discharging a disabled employee if the employee is unable to perform his or her essential job duties even with reasonable accommodation.
The trial court dismissed the employee's claim after concluding that he had not shown that he could perform his job.
The appeals court first noted that FEHA and its implementing regulations set forth a non-exhaustive list of possible accommodations, including:
- Job restructuring.
- Providing a part-time or modified work schedule.
- Providing paid or unpaid leave for treatment and recovery.
- Reassignment to a vacant position.
Offering a disabled employee who can no longer perform the essential functions of his or her job a vacant position may be a reasonable accommodation even if the new position pays less than the original job, the court said.
When the employer terminated the employee, it suggested that he check available job postings. This does not, the court said, satisfy the employer's duty to reassign or transfer a disabled employee to a vacant position, because the employer is in a better position than the employee to know what jobs are vacant and could be assigned to the employee.
In addition, the court said, the employer's duty to engage in the interactive process included advising the employee of other suitable job opportunities.
Furthermore, the employer retained, but demoted, two of the supervisors who ranked lower than the employee but never offered the employee any alternative position. This is evidence that the employer failed to engage in the interactive process by refusing to provide information about available positions that might have helped the employee in returning to modified work and avoiding the layoff.
Therefore, the employee could proceed with his disability bias claim, the court said.
Zamora v. Security Industry Specialists, Calif. Ct. App., No. H044008 (Sept. 30, 2021).
Professional Pointer: Although the employer in this case did provide the employee with a leave of absence, under California law, if there is an available accommodation other than a medical leave, an employer cannot require the employee to take a leave.
Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.
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