Employee Obligations to Engage in the Interactive Process under FEHA
In Scotch v. The Art Institute of California, 173 Cal.App.4th 986 (2009) the court held that the plaintiff in a “failure to accommodate" lawsuit must identify a reasonable accommodation, and establish that the accommodation was available at the time the "interactive process" should have occurred. An employer is not liable under the FEHA simply because its interactive process was less than perfect. The accommodation identified by the employee in Scotch was unreasonable as it amounted to a guarantee of full-time employment – an accommodation the employer is not legally obligated to provide.
Carmine Scotch was employed as an instructor at The Art Institute of California (the “Institute"), a media arts school offering degrees to its students in fields such as animation, game arts and design, and interior design. The Institute’s accreditation guidelines, prepared by the Accrediting Council forIndependentCollegesand Schools, require faculty members teaching upper division courses to hold certain graduate degrees and/or certifications. The Institute made limited exceptions to the guidelines, depending on a faculty member’s experience and other qualifications. In such instances, the Institute encouraged the instructor to purse an advanced degree, and offered to pay tuition expenses for doing so. Mr. Scotch did not hold an advanced degree, so the Institute encouraged him to obtain a master’s degree.
Mr. Scotch taught five classes per semester, the Institute’s minimum for “full-time" status, which included health and life insurance benefits. In 2004, Mr. Scotch asked to stop teaching morning classes, stating only that the medication he took for “personal health issues" made it difficult to drive in the morning. The Institute honored the request, and did not inquire further into Scotch’s “personal health issues."
In 2006, Scotch received a poor performance review citing, among other causes, Scotch’s failure to pursue a master’s degree as encouraged by the Institute. In response, Scotch told his supervisor that he suffered from a “long-term illness" that affected his job performance and his ability to pursue the master’s degree. Scotch’s supervisor referred him to the Institute’s Human Resources Director. Scotch told the HR Director that he was HIV positive, and requested that the information be kept confidential.
The HR Director scheduled a meeting with a manager to discuss Scotch’s illness and performance. Mr. Scotch understood the purpose of this meeting was “to explain the way the . . . review came out and discuss being careful about taking care of my health and the master’s degree requirement and how that would impact, possibly, and if there’s a way I could sort of slow down all the requirements so I could get all this done." During the meeting, Scotch also suggested that the poor performance review was in retaliation for previous absences relating to his illness. Scotch told his supervisors he did not have time to fulfill his job duties and get a master’s degree, adding that he could not be stressed out and had to have enough time to do his outside freelance work. The supervisor responded by suggesting a longer term master’s degree program, that would allow Scotch to work toward the degree over three years with a decreased workload. Ultimately, the parties did not implement any specific accommodations, and did not move beyond “evaluation" of options.
In mid-2006, student enrollment declined at the Institute. To retain the instructors with master’s degrees, the Institute assigned them to upper level courses. The Institute laid off seven faculty members because they had not enrolled in master’s degree programs, and reduced the hours of ten others. The Institute told Mr. Scotch that he would be scheduled to teach lower division courses until he achieved a master’s degree, and reduced his courseload to three courses, which caused him to be classified as part-time. Mr. Scotch objected to his reduced hours, and ultimately resigned.
Mr. Scotch sued the Institute, alleging unlawful discrimination and retaliation by the Institute on the basis of Scotch’s disability. Scotch also alleged that the Institute failed to engage in a good faith interactive process, and failed to identify and offer a reasonable accommodation as required by the FEHA. The trial court granted summary judgment in favor of the employer, and the appellate court agreed.
The court evaluated Mr. Scotch’s discrimination claim using a “burden shifting" analysis. Scotch was required to demonstrate a “prima facie" case of discrimination, meaning that he had to show that the Institute took actions that, if unexplained, would support the inference that it is more likely than not that the actions were based on discrimination. The employer must then produce evidence of a legitimate, non-discriminatory reason for its actions. If the employer produces this evidence, the employee must prove that the employer’s reason was pretextual in order to win the case.
Evaluating the case under this standard, the appellate court agreed with the trial court’s decision disposing of Scotch’s claims. The appellate court focused on the poor performance review, and Scotch’s lack of a master’s degree and failure to enroll in a master’s program as evidence of the Institute’s legitimate, non-discriminatory reason for reducing Scotch’s hours. Scotch could not demonstrate by evidence that the Institute’s reason for reducing his schedule was pretextual, or that there was a causal link between the reduction in his hours and his disclosure that he was HIV-positive. Thus, his discrimination claim failed.
The appeals court also rejected Mr. Scotch’s claim for failure to make reasonable accommodation. It found that Scotch’s proposed accommodation – giving him priority in assignment of lower division courses to insure that he maintained full-time status – was not reasonable and would not have accommodated his work restrictions (i.e. the need to avoid stress while he pursued a master’s degree). In contrast, the appeals court also noted that the Institute had offered a potential accommodation – suggesting that Mr. Scotch pursue an extended three-year master’s program that would have reduced his workload and limited the stress caused by his teaching schedule.
On Mr. Scotch’s claim for failure to engage in the interactive process, the court criticized the employer’s process, particularly the failure to hold more than one meeting to discuss Scotch’s need for accommodation. Nonetheless, Mr. Scotch did not satisfy his burden of producing adequate evidence for his claim to go to trial because the Institute offered a reasonable accommodation, and he did not identify another reasonable accommodation that was available at the time the interactive process should have occurred. The court acknowledged that the employee does not have the same access to information about possible accommodations as the employer does during the interactive process. Still, the employee must ultimately be able to identify a reasonable accommodation that would have been available if the parties had engaged in a meaningful interactive process. In Scotch’s case, the court found that further meetings to discuss accommodations would have been nonproductive. As the court put it: “[I]f this case were presented to a jury, what remedy could it provide? How was Scotch damaged by any failure by the Institute to engage in the interactive process in good faith?"
The Scotch case highlights the confusion that often surrounds the interactive process, particularly when several areas of concern develop simultaneously. In Scotch, the parties did not have a common understanding of the purpose for their meeting. Was it to address his undefined “health issues"? His performance evaluation? Both? During the meeting, the parties apparently did not discuss any limitations on Scotch’s ability to do his job, except for his statement that his overall work requirements needed to be “slowed down." If Mr. Scotch proposed a reasonable accommodation, it was so ill-defined that the Institute never understood what Scotch was requesting.
The employer in Scotch was ultimately saved by the fact that Mr. Scotch could not identify – even during the lawsuit – a reasonable accommodation that would have effectively addressed his disabling stress condition. If a reasonable accommodation had existed, but was simply not identified through this interactive process, the appellate court would have likely reached a different conclusion.
For Californiaemployers, the lesson of Scotch is to take seriously the obligation to engage in an interactive process. Employers should meet with the employee as soon as possible under the circumstances, asking questions about the limitations posed by the disability, and gathering information from both the employee and his or her medical care providers. As part of this process, the employer should identify the essential functions of the employee’s job, focusing on the physical requirements of the position. Employers should carefully consider all potential accommodations, and document this decision-making process in the employee’s personnel file for future reference. If a reasonable accommodation exists, the accommodation should be offered to the employee. The touchstone of this process is good faith. Employers with questions about the interactive process or other disability laws matters should consult with experienced HR professionals or employment law counsel.