June 6, 2006 Reasonable Accommodations Must Be Considered for Individuals Who Are "Regarded As" Disabled


Last week, a California Court of Appeal held that employers must engage in the “interactive process” with and reasonably accommodate individuals who are not actually disabled but merely “regarded as” disabled. This is the first California case extending these obligations to “regarded as” individuals.


In Gelfo v. Lockheed Martin Corporation, plaintiff Charles Gelfo injured his back while working for Lockheed. After being laid off for reasons unrelated to his injury, Lockheed invited Gelfo to participate in a training program to become a plastic parts fabricator. After Gelfo completed the training program, Lockheed offered him a job as a fabricator. However, after reviewing Gelfo’s file (which revealed medical restrictions relating to his prior back injury), Lockheed revoked the offer. Despite Gelfo’s assertion that he had been released from his prior restrictions and had no physical limitations, Lockheed adhered to its determination that Gelfo had physical limitations resulting from his back injury which prevented him from performing essential functions of a fabricator and for which there was no reasonable accommodation.

Gelfo sued Lockheed claiming, among other things, that Lockheed violated the California Fair Employment and Housing Act (“FEHA”) by failing to provide him with a reasonable accommodation and failing to engage in a good faith, interactive process with him to determine an effective accommodation. After finding that Gelfo did not have an actual disability, the trial court dismissed these claims on the grounds that an employer has no duty to reasonably accommodate or to engage in an interactive process to determine an effective accommodation for an individual who does not have an actual disability.

Disagreeing with the trial court, the Court of Appeal concluded that the FEHA requires employers to reasonably accommodate and to engage in an informal, interactive process to determine any effective accommodations with individuals who are actually disabled as well as individuals who are merely regarded as being disabled. In reaching this conclusion, the Court of Appeal emphasized that the FEHA does not differentiate between individuals with disabilities and those with perceived disabilities in regard to reasonable accommodation rights. Moreover, applying reasonable accommodation and interactive process rights to individuals who are regarded as disabled advances the FEHA’s goals by encouraging employers to become more enlightened about their employees’ true capabilities while protecting employees from employers whose attitudes remain mired in prejudice and stereotypes. Thus, employers unable or unwilling to shed stereotypic assumptions based on faulty or prejudiced perceptions of an employee’s abilities must be prepared to accommodate the artificial limitations created by their faulty perceptions.

What This Means

Prior to this decision, no published California case had considered whether an employer has a duty under FEHA to provide a reasonable accommodation to an applicant or employee who is regarded as disabled. Although federal courts are divided on this same issue under federal law, the Ninth Circuit Court of Appeals — which has jurisdiction over California — has determined that federal law does not require employers to reasonably accommodate individuals who do not have an actual disability. Accordingly, this decision significantly changes the reasonable accommodation landscape in California. So, although we expect that the California Supreme Court will have the last word on this issue in the future, employers should do several things to make sure they comply with the current state of the law: (1) be sure to engage in an interactive process with and provide reasonable accommodations to all applicants and employees with actual or perceived disabilities; (2) be sensitive about considering applicants and employees disabled based only on perceptions or assumptions; (3) consider providing additional training to supervisors and human resources personnel to avoid misperceptions and stereotypes regarding disabilities; and (4) review and revise any reasonable accommodation policies to conform to the current state of the law.

This E-Update was authored by Fred Plevin and Michael Minguet. For more information, please contact Mr. Plevin, Mr. Minguet or any Paul, Plevin attorney at 619-237-5200.


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