In Atkins v. City of Los Angeles (CA2/7 B257890 2/14/17), the California Court of Appeal for the Second Appellate District recently upheld a jury’s finding that the City of Los Angeles failed to provide reasonable accommodations to recruits from the City Police Academy in violation of the Fair Employment and Housing Act (“FEHA”).
The five recruits suffered injuries during their six-month training course which left them temporarily physically disabled. The City had a prior practice of allowing injured recruits to join a program known as the Recycle Program, which placed recovering recruits in desk jobs until full recovery or until permanent disability. In an effort to reduce costs and ensure compliance with a statute requiring training and probation to be completed within two years, the City terminated the Recycle Program. The recruits, who were still recovering from their injuries at the time of the program’s termination, were notified that unless they obtained immediate medical clearance, they would have to resign or be terminated.
The jury found that the City unlawfully discriminated against the plaintiffs based on their physical disabilities, failed to provide them with reasonable accommodations and failed to engage in the interactive process required by FEHA. The recruits were awarded economic loss damages of $12,000,000 in total for wages that would have been earned until each recruit’s hypothetical retirement.
On appeal, the Court concluded that the recruits were not “qualified individuals” under FEHA for purposes of their discrimination claim and reversed the jury’s verdict on that claim. The Court affirmed the jury’s verdict in favor of the recruits on their claim of failure to accommodate. The court also vacated the jury’s award of damages as “unreasonably speculative” and remanded on that issue.
To establish their claim of disability discrimination at trial, the recruits submitted evidence of their ability to “perform the essential functions for the positions to which they sought reassignment.” The recruits’ requested accommodations included either transfer to city positions not requiring physical exertion or continued participation in the Recycle Program. On appeal, the Court held that the relevant question in assessing whether the recruits had been subjected to disability discrimination should have been whether the recruits “could perform the essential functions of [a police recruit] without or without reasonable accommodation.” The Court found that the recruits did not have the ability to perform the essential functions of a police recruit and further concluded that the proposed accommodation was “unreasonable as a matter of law” because it “eliminate[d] one or more essential functions of the job of a police recruit or officer.” Because the recruits could not perform the essential functions of the police recruit position, they were not “qualified individuals” under FEHA and therefore could not establish their claim for disability discrimination.
The Duty to Provide Reasonable Accommodation
The Court next considered whether the City met its duty to reasonably accommodate the plaintiffs. While the question whether plaintiffs could perform the essential functions of a position to which they sought reassignment was not the relevant inquiry with respect to the plaintiffs’ claim for disability discrimination, the court held that it was “relevant to a claim for failure to accommodate under section 12940, subdivision (m), and to a claim for failure to engage in the interactive process.”
“The reasonableness of a particular accommodation,” the court explained, “must be determined in light of an employer’s policies and practices.” Importantly, the City had a longstanding practice of allowing injured recruits to remain in the Recycle Program indefinitely until they healed and could return to the Academy or until their disabilities became permanent. The new policy, which restricted participation in the Recycle program to six months, constituted “a significant and unprecedented change” in policy. Considering these facts, the Court concluded that the request for reassignment to the Recycle program until full recovery or until permanent disability was not unreasonable.
Employers should note that the duty to reassign an employee as a reasonable accommodation may extend to, as found in this case, probationary or pre-probationary employees. The City cited EEOC guidance in arguing that the recruits, who never completed their training, had never performed the essential functions of their “original position” and were therefore not qualified individuals under FEHA. However, as observed by the Court, there was no dispute as to their ability to perform the essential functions of a police recruit at the time of hire, nor to the fact that such duties had been performed, “even if for a relatively short time.”
Affirmative Defense of Undue Hardship
Undue hardship is an affirmative defense to a claim for failure to accommodate. The Court emphasized that “an employer must do more than simply assert that it had economic reasons to reject a plaintiff’s proposed reassignment.” Rather, an “employer must show why and how asserted economic circumstances would affect its ability to provide a particular accommodation.” Citing FEHA, the Court defined “undue hardship” as “an action requiring significant difficulty or expense, when considered in light of the following factors:
(1) The nature and cost of the accommodation needed;
(2) the overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility;
(3) the overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities;
(4) the type of operations, including the composition, structure, and functions of the workforce of the entity; and
(5) the geographic separateness or administrative or fiscal relationship of the facility or facilities.”
The jury considered evidence presented by the City of a City-wide hiring freeze and the City’s efforts to comply with the statutory 2-year rule for completion of the training process for police recruits, but ultimately concluded that the City failed to establish significant difficulty or expense beyond the result of “potentially lower [police officer] staffing levels.” The Court suggested that a different conclusion might have been reached if the City had offered evidence “to show either that the expense of hiring additional recruits would have been too great in relation to the City’s financial health or that the City could not have met its public safety needs if the plaintiffs remained in the recycle program or if the City could not have hired additional recruits.”
Practical Tips for Employers
- When instituting a policy change that no longer provides for an accommodation, employers should ensure that the policy does not result in disparate treatment of employees who were employed by the company prior to the policy change. (In other words, the policy should apply prospectively only, and present employees may continue to receive the benefits of the prior policy).
- Employers should implement a reasonable accommodation policy focused on appropriately assessing requests for accommodation and training management and HR personnel to engage in in timely and good faith interactive process. Reasonable accommodation can include changing job duties or work hours, relocating the work area, providing mechanical or electrical aids and providing leave. Although an employer is not required to create a new position, an employer must consider transferring an employee to an available position for which they are qualified. In a previous article, we discussed the, EEOC’s Guidance on Leave as a Reasonable Accommodation.
Whether undue hardship exists involves a complex fact-based inquiry. Courts will look to company policies and past practices in assessing whether a requested accommodation poses a significant expense. Financial hardship is a function not only of cost itself but of how such cost affects the employer’s overall financial condition.