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The first published California court decision holding that the state's Fair Employment and Housing Act (FEHA) requires employers to engage in an "interactive process" and provide reasonable accommodation to workers "regarded as" disabled by the employer, even if they are not actually disabled, has been handed down. Gelfo v. Lockheed Martin Corporation, 140 Cal.App.4th 34, 43 Cal.Rptr. 3d 874 (2006).


Facts

In September 2000, Charles Gelfo, a metal fitter with the Lockheed Martin Aeronautics Co., sustained a job-related back injury and filed a worker's compensation claim. A month later, Lockheed laid off Gelfo as part of a reduction-in-force and placed him on a recall list. Over the next year, multiple doctors examined Gelfo regarding his worker's compensation claim. His doctors diagnosed him as "permanently disabled" and advised he should do "no heavy lifting, no repetitive bending, and no prolonged sitting or standing." They opined that Gelfo's condition precluded him from returning to his metal fitter position.

During a recall period, Gelfo accepted an invitation by Lockheed to participate in a training program to become a plastic parts fabricator and assembler. He did not disclose to anyone connected with the training that he had an active worker's compensation claim or that he had any physical limitations or work restrictions. Gelfo completed the training and performed all of the tasks required without injury. At the end of the class, Lockheed offered Gelfo a position as a fabricator. Two days later, Lockheed revoked the offer, stating that a review of Gelfo's file revealed medical restrictions that were incompatible with the physical demands of the position. Gelfo urged Lockheed to reconsider its decision, stating he "felt great" and "really didn't have any limitations."

Months after revoking the offer to Gelfo, Lockheed convened a committee to review whether it could accommodate him in the fabricator position given the restrictions in his medical file. Lockheed determined that it could accommodate one, but not all, of the restrictions, and that no reasonable accommodation would enable him to perform all of the job's essential functions.

Gelfo sued Lockheed under FEHA for disability discrimination, failure to provide reasonable accommodation and failure to engage in FEHA's interactive process. On a motion for directed verdict by Lockheed, the trial court found Gelfo did not have an "actual" disability and Lockheed thus had no duty to provide him with a reasonable accommodation or to engage in the interactive process under the FEHA. The trial court dismissed all of Gelfo's claims except for his claim that Lockheed violated FEHA by refusing to rehire him as a fabricator because it "regarded" him as disabled. A jury returned a verdict in Lockheed's favor on this remaining claim. Gelfo appealed.


Appellate Decision

The Court of Appeal affirmed the trial court's ruling that Gelfo was not "actually" disabled under FEHA. Referring to the statute's definition of "disability," the court held Gelfo could not show his back injury made " 'difficult' the achievement of work or some other major life activity." Indeed, the court noted that Gelfo had made considerable efforts to prove the opposite.

The court then turned to the question whether Lockheed "regarded" Gelfo as disabled. The court ruled this issue should have been decided in Gelfo's favor rather than being left to the jury. The court observed that "Lockheed never maintained its decision not to hire Gelfo was premised on anything other than its belief that medical restrictions imposed as a result of Gelfo's lower back injury rendered him unable to perform the essential functions of a fabricator."

Given this conclusion, the court then addressed whether the FEHA requires reasonable accommodation of employees who are "regarded as" disabled by their employers. No California court had ever decided this issue in a published opinion.

Weighing federal authority, the Gelfo court declined to follow 8th and 9th U.S. Circuit Courts of Appeals decisions holding that employees "regarded as" disabled have no right to a reasonable accommodation. The court rejected the reasoning of those circuits that applying the accommodation duty in cases of perceived disability would lead to "bizarre results" by allowing non-disabled workers to receive more favorable treatment based solely on their employers' misperceptions.

Instead, the Gelfo court adopted the rationale adopted by the 1st, 3rd, 10th and 11th U.S. Circuit Courts of Appeals that the ADA does not distinguish between persons who are "actually" versus "regarded as" disabled in requiring accommodation and that the statute "encourages employers to become more enlightened about their employees' capabilities, while protecting employees from employers whose attitudes remain mired in prejudice." Based on the language and underlying policy of the FEHA, the Gelfo court held that employers must reasonably accommodate applicants and employees falling within any of FEHA's definitions of "disabilities," including those merely "regarded as" disabled.

The court further concluded that employers must engage in an "interactive process" with applicants and employees regarded as disabled. FEHA generally requires employers to engage in a "timely, good-faith interactive process" with applicants and employees who have a "known" disability to determine if an effective reasonable accommodation can be made. The Gelfo court interpreted the term "known" disability to mean one of which the employer is aware or perceives to exist, whether mistakenly or not. The court rejected the argument that there should be no duty to engage in a "futile" dialogue with an employee who is merely "regarded as" disabled. The court noted that the purpose of the interactive process is to ensure that "capable employees can remain employed if their medical problems can be accommodated, rather than sounding a clarion call to legal troops to opine on whether the employee's impairment is an actual disability within the legal nuances of the statute."


How Gelfo Decision Impacts California Employers

Gelfo underscores the potential liability employers face when they make hiring and other personnel decisions based upon perceptions of an employee's job-related limitations. The decision whether to afford an employee a job-related accommodation must be based upon an individualized analysis of the employee's current abilities and functional limitations, if any, measured against the specific requirements of the job. Below are several practical guidelines for employers in order to avoid liability in this area:

		Do not ignore an employee's statements about his or her physical or mental limitations (or lack thereof). Communicate with the employee and find out what potential accommodations, if any, may enable the employee to perform the essential functions of the position. Then consider whether those accommodations are reasonable under the circumstances.
		If an employee's subjective statements about his or her functional abilities conflict with a prior medical record, seek a current medical certification from an appropriate health care provider.
		Do not rely upon a medical opinion rendered for worker's compensation purposes to evaluate whether an employee is able to perform the essential functions of his or her job with or without a reasonable accommodation. The standards for determining an employee's eligibility for worker's compensation benefits are different from those under FEHA and ADA for determining whether an employee is disabled or entitled to reasonable accommodation.

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©2006 Thelen LLP