Employers must follow a wide array of rules, laws, and regulations pertaining to their workers and employees.
According to various Federal and State Acts and declarations, employees who are disabled in some way must be protected and not discriminated against. There are numerous ways that a workplace can practice discrimination, and it is extremely important that you familiarize yourself with the laws that protect you. If you do not have a clear and lucid understanding of these laws, you may be on the receiving end of discrimination and not be able to counteract it.
One of the key sections pertaining to disability discrimination involves the “interactive process,” which involves employees requesting reasonable accommodations for their injuries or disabilities. Our expert team at EMPLOYMENT ATTORNEY GROUP can educate you on disability discrimination and employment law, and you can read on for more information.
Important Laws Regarding Disabilities and EmploymentThere are a few laws and Acts that were put into place to ensure fair treatment of individuals who were disabled or injured. Worker’s compensation and disability benefits are but one part of that law. There is also the Americans with Disabilities Act of 1990, which prohibited employers from discriminating against those with disabilities or who need reasonable accommodations to complete their essential job functions.
What is considered interactive process under CA Law?
As per the Department of Fair Employment and Housing (DFEH):
“Employers must initiate an “interactive process” when an applicant or employee requests reasonable accommodations. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation.”
The law in California (Title 2. Government of the State of California, Division 3. Executive Department, Part 2.8. Department of Fair Employment and Housing, Chapter 6. Discrimination Prohibited, Article 1. Unlawful Practices, 12940 (n)) specifically states the following: “For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.“
Essentially, the interactive process is the discussion of reasonable accommodations for those who have been hurt or disabled and seek to continue working through the injuries or during the recovery process.
What is considered interactive process under federal law?
According to the Equal Employment Opportunity Commission (EEOC):
“The interactive process refers to an information-gathering approach used by an employer with the employee to evaluate a request for accommodation. It is intended to be a flexible approach that centers on the communication between an employer and the individual requesting reasonable accommodation, but may (and often does) involve obtaining relevant information from a supervisor and an individual’s health care provider. This process begins upon receipt of an oral or written request for reasonable accommodation. The person who will decide whether to grant or deny a reasonable accommodation (at EEOC it is the Disability Program Manager (DPM)) engages in a discussion with the requestor and other relevant individuals (e.g., a supervisor, a requestor’s health care provider) to collect whatever information is necessary to make an informed decision about whether the requestor is covered as an individual with a disability and, if so, what reasonable accommodation(s) will effectively eliminate the barrier identified by the requestor and permit an equal opportunity to apply for a job, to perform a job or to gain access to the workplace, or to enjoy access to the benefits and privileges of employment.”
What are examples of the interactive process?
The interactive process begins with the employer analyzing the employee’s job to determine what its essential functions of it are. This way, the non-essential or marginal functions can be discarded, and the necessary parts are kept in mind. Reasonable accommodations are only applicable to essential job functions.
Some examples of essential job functions include typing if you are a programmer, standing for long periods if you are a cashier, and lifting boxes and books if you’re a schoolteacher.
Next, the employer and the worker should determine together what prevents the individual from completing the duties. For instance, if an individual is involved in a car accident that causes his hands to get severely damaged, he may not be able to type or use a phone for a period of time, and will not be able to work up to the standard expected of him.
Once the identification has been made, the employer and worker should then endeavor together to see what kind of reasonable accommodations can be granted to help the worker complete his essential job functions. A typist whose hands are damaged can suggest a reduced workload of transcription and typing-intensive work, and instead focus on proofreading, dictation, and editing, all of which are tasks that are much less abusive on the hands.
Lastly, the employer should determine whether or not the accommodations presented by the worker are reasonable, and whether or not they will be effective and will not present an undue hardship on the company. If accommodations would cause the company to lose money or would cause other coworkers to be negatively impacted, it is within reason for the accommodations to be rejected. It may even be within reason for the individual to be terminated if the accommodations are expected to last long-term.
Must my employer negage in the interactive process?
It is not legally required that your employer engage you in the interactive process. It is instead a worthwhile way for the employer to protect its employees and to protect itself in the event that an employer suspects discrimination.
It is, however, illegal for the employer to deny reasonable accommodations. If, at the end of the interactive process, a decision was made and the worker could have certain accommodations, such as extra break time or time off to undergo treatments, it would be illegal for the employer to take those accommodations away or to fire the individual for abiding by the accommodations.
How can I tell if I have been refused the interactive process?
If your employer did not engage in any discussions with you regarding your disabilities or injuries and he did not talk with you about anything that can be done to alleviate issues or reasonably accommodate you, it is safe to say that you were refused the interactive process. Bear in mind that the interactive process is primarily a way to sift through the situation. If your employer does not broach the subject himself, it may be up to you to begin the interactive process, notably by requesting reasonable accommodations for your injuries.
What to do if my employer did not engage in the interactive process?
If your employer did not engage in the interactive process, that in and of itself does not give you cause or foundation to file a lawsuit for discrimination. It is an act of good faith to sit down with you and discuss your injuries and what can be done to move forward to keep you working. If your employer abstains from doing so, it may not be indicative of discrimination.
Who Is Liable For Discrimination If I Was Not Involved In The Interactive Process?
If your employer outright refused to go through the interactive process with you, it is not labeled as discrimination. On the other hand, if you did not go through the interactive process and you were denied any accommodations for your injuries, then you could cite discrimination.
Employers are required to keep their workers safe, and it is illegal to fire anyone who can complete his job duties with reasonable accommodations. Your employer may try to come up with other ways to fire you, which could be difficult to pinpoint, especially if you are not present at the place of business too often.
What kind of proof should I collect to show I suffered discrimination at work?
You can collect a number of types of evidence to show that you were discriminated against at work. Proof can include:
- Photograph, video, or audio evidence of discriminatory remarks and actions
- Messages, emails, texts, and memos showing that you were denied accommodations or that you were requested to complete duties or actions beyond your capabilities
- Statements from coworkers or witnesses who saw the incidents happen or who can testify that you were denied such accommodations
- Copies of any interactions you had with Human Resources and your boss detailing the request for reasonable accommodations or for steps moving forward
In some instances, you may simply have been fired for requesting reasonable accommodations, but your boss framed it as the need to move to someone more qualified. It may be extremely hard to prove that you were a victim, and you should do everything in your power to collect as much evidence as you can if you wish to file a lawsuit.
How can I sue for discrimination at work?
If you plan to sue for discrimination at work because you were denied reasonable accommodations, you will need ample proof to submit to the DFEH. The DFEH will evaluate your evidence and issue you a right-to-sue letter.
You only have 300 days to take legal action once you have received the right-to-sue letter. You should also be aware that if your claim is based against a government entity, your statute of limitations is greatly reduced. You will only have 90 days to sue for damages, which can include back and future wages, pain and suffering, punitive damages, and more.