Mcle Article: a Law Firm's Legal Duty to Provide Reasonable Accommodation to Attorneys With Disabilities
| Publication year | 2017 |
| Author | By Kevin M. Rivera |
By Kevin M. Rivera
Kevin Rivera is the principal and founder of Rivera Employment Law, based in Los Angeles. He advises employers in all aspects of employment law, and conducts investigations of workplace complaints. He is a former Am Law 100 attorney, with over 10 years of experience representing employers of all sizes and across industries. He can be reached at kevin@riveraemploymentlaw.com or through www. riveraemploymentlaw.com.
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Law firms in California with five or more employees have an affirmative legal duty to provide reasonable accommodation to their attorneys and other employees with physical or mental disabilities unless doing so would cause undue hardship. This affirmative duty arises from state and federal law and furthers the important public policy of lifting barriers to employment faced by attorneys with disabilities. According to data the Equal Employment Opportunity Commission (EEOC) has provided, 32.6% of all EEOC claims filed in California in 2016 were based on disability, surpassing the number of claims filed based on any other protected characteristic, such as race, sex, color, religion, national origin, or age.1 Similarly, the California Department of Fair Employment and Housing (DFEH) reported that the majority of employment-based discrimination claims it received in 2016 were based on disability.2 This is not surprising given how complex the law is on accommodating individuals with disabilities. While attorneys with disabilities may require accommodations similar to those required by employees in other business environments, the law firm setting can pose unique challenges not faced in other settings, such as billable hours requirements, heavy caseloads, and the ability to work under extreme pressure. This article reviews the legal framework for a law firm's duty to provide reasonable accommodation, and discusses the ways in which firms can meet this obligation for their attorneys with disabilities.
A California employer's duty to provide reasonable accommodation to individuals with disabilities is principally derived from two laws, the federal Americans with Disabilities Act (ADA) 3 and the California Fair Employment and Housing Act (FEHA).4 The ADA prohibits private sector employers from discriminating against employees on the basis of disability, and requires employers to provide reasonable accommodation to qualified applicants and employees with disabilities, unless doing so would cause undue hardship.5 The FEHA was modeled in part on the ADA, and prohibits employment discrimination on the basis of physical disability, mental disability, and medical condition.6 Like the ADA, the FEHA requires employers to provide reasonable accommodation for the known physical or mental disability of an applicant or employee, unless doing so would impose an undue hardship.7
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Importantly, "the duty of an employer to provide reasonable accommodation for an employee with a disability is broader under the FEHA than under the ADA."8 Although the ADA provides a floor of protection, the FEHA affords additional protections to California employees.9 One of the major differences between the FEHA and ADA is that while the ADA applies to employers with fifteen or more employees, the FEHA applies to employers who regularly employ five or more employees.10 Employees located outside of California are counted in determining whether the employer meets the "five or more" employee threshold under the FEHA.11
The FEHA's anti-discrimination and reasonable accommodation provisions apply only to employees and applicants, not independent contractors.12 A law firm therefore has no legal duty to provide reasonable accommodation to a disabled freelance or "contract attorney" with whom it works, assuming that the attorney is a bona fide independent contractor and not a misclassified employee.13
Under the FEHA, an employer's duty to disabled individuals encompasses two distinct yet related obligations: (1) to make "reasonable accommodation" and (2) to engage in an "interactive process."14"Reasonable accommodation" refers to a modification or adjustment to the work environment that enables the employee to perform the essential functions of the job he or she holds (or for which he or she is applying).15 An "interactive process" consists of a dialogue between the employer and the employee/ applicant to assist the employer in selecting an appropriate accommodation.16 Essentially, reasonable accommodations remove barriers to employment faced by disabled employees that enable them to apply for jobs, perform their jobs, and reap the benefits of employment, and the interactive process is the means by which a reasonable accommodation is selected. An employer must make reasonable accommodation(s) for the disability of an applicant or employee unless it can demonstrate, after engaging in an interactive process, that the accommodation would impose an undue hardship.17
If providing a reasonable accommodation for an employee's disability would impose an undue hardship on the employer, the employer is not required to make the accommodation.18 The FEHA defines "undue hardship" as "an action requiring significant difficulty or expense" when considered in light of several factors: the nature and cost of the accommodation; the employer's ability to pay for the accommodation; the type of operations conducted at the facility; the impact on the operations of the facility; the number of employees and the relationship of the employees' duties to one another; the number, type, and location of the employer's facilities; and the geographic, administrative and financial relationship of the facilities to one another.19
While the cost of an accommodation and the employer's ability to pay for it are factors used to assess undue hardship, the determination cannot be made by making a cost-benefit analysis.20 Whether the cost of a particular accommodation imposes an undue hardship depends on the firm's resources and ability to pay, and not on the accommodation's benefit to the firm and attorney in relation to its cost. For example, suppose an attorney who has significant experience and expertise in a highly specialized area of the law requires two months off as a reasonable accommodation. Due to her level of expertise, her workload cannot be distributed among more junior attorneys in the firm, and the firm therefore engages a legal staffing agency that places highly specialized attorneys with firms. Granting the leave would not be an undue hardship if the firm has the financial ability to hire a qualified temporary attorney through the staffing agency, even if the cost of doing so will be more than what the firm would have paid to the disabled attorney for the same period of time.
Undue hardship, however, is not limited to the issue of financial difficulty, and also can arise from "reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business."21 Take, for example, an attorney who will be second chairing a class action trial that is expected to last several weeks. On the eve of trial, the attorney requests intermittent leave for unforeseeable episodes of incapacity caused by migraines. Granting the request for intermittent leave may pose an undue hardship for the duration of the trial.
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Law firms should exercise caution when denying an accommodation based on undue hardship, as "[t]he bar for undue hardship is 'high.'"22 If the determination is later challenged in court, the firm will have to present "proof of actual imposition or disruption" that granting the accommodation would have worked.23 "Hypothetical or merely conceivable hardships cannot support a claim of undue hardship."24 Whether a reasonable accommodation will cause undue hardship should be based on careful analysis and be meticulously documented. If a firm determines that one particular reasonable accommodation will cause undue hardship, but a different accommodation will be effective and will not cause an undue hardship, the firm must provide the second accommodation.
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