The Interactive Process Dance: What Happens When the Music Stops?

• Publication year: 2015
• Author: By Patricia Perez, Lara de Leon, and Kelly Bolar

The Interactive Process Dance: What Happens When the Music Stops?

By Patricia Perez, Lara de Leon, and Kelly Bolar

Patti Perez, President and Founder of Puente Consulting and a Commissioner with the Fair Employment and Housing Council, focuses her practice on conflict resolution (conducting neutral investigations and performing pre- and post-litigation mediations) and presenting trainings nationwide. Lara de Leon is a shareholder in the Orange County office of Ogletree Deakins. She represents employers in all aspects of labor and employment law, including employment litigation and counseling. Ms. de Leon is a frequent speaker on disability law and is also a member of Ogletree Deakins' Disability Access Practice Group. Kelley Bolar is an associate in the Orange County office of Ogletree Deakins, where she represents and counsels employers in a variety of labor and employment matters, including the California Fair Employment and Housing Act, Title VII, the Family and Medical Leave Act, and federal and California wage and hour issues.

Introduction

California employers are not only required to refrain from discriminating against any employee on the basis of disability, but they also have an obligation to provide "reasonable accommodations" for employees with disabilities.¹ Additionally, the California Fair Employment and Housing Act (FEHA) provides that to determine whether there is an effective and reasonable accommodation that can be implemented, employers and employees must participate in a mutual, good-faith interactive process.² While this sounds like a relatively simple obligation, it has become a topic that often confuses employers and employees alike. In litigation, the issue of the interactive process has become one of the most important aspects for litigants, counsel and judges. A prior article in the Law Review examined the steps of the interactive process "tango."³ This article explores what happens when, for whatever reason, the process comes to an end.

Overview of the Interactive Process—May I Have This Dance?

In addition to the guidance provided by California state and federal courts, regulations drafted by the California Fair Employment and Housing Commission (and its successor agency, the Fair Employment and Housing Council (FEHC)) provide clarification about the interactive process—although the guidance is not exhaustive, due to the individualized nature of the interactive process. The regulations do, however, provide direction on the overall objective of the process—that both employers and employees should take a common-sense, problem-solving approach to the process and should act in good faith at all times. No "magic words" are necessary to invoke the process; rather, the obligation ensues once the employer is aware of the need to consider an accommodation.⁴

Courts have made clear that they are looking for evidence of a "cooperative dialogue"⁵ and good faith on the part of both parties.⁶ Neither side is permitted to engage in obstructionist conduct.⁷ This dialogue includes making reasonable efforts to communicate concerns and making information available to the other party.⁸ If the employee requests a particular accommodation, the employer must give it "due consideration."⁹ If the employer rejects the proposed accommodation, it must "initiate discussion with the applicant or employee regarding alternative accommodations."¹⁰

In many cases, the interactive process is seamless, and the employer and employee are able to easily identify a reasonable and effective accommodation. In others, the situation is not so simple. It may take many rounds of dialogue to identify an accommodation. The accommodation initially identified may fail or cease to be effective for either party. To this end, employers are not relieved of their obligation by providing one accommodation; rather, the employer must remain engaged and willing to consider further accommodations if the initial accommodation no longer works, or if the employee requests further accommodations.¹¹ Employees are equally expected to be open and cooperative during the process, which includes providing reasonable medical documentation supporting the need for the accomodations sought.¹²

Oftentimes, employers wonder whether they can or should only engage directly with the employee or whether a representative of the employee can also participate in the interactive process. As is true with all issues in this area of employment law, a good rule of thumb is to refrain from making rushed decisions, and instead analyze each scenario independently to determine how best to proceed. Although an employer may not be required to communicate with a representative (e.g., an attorney, a union representative or a relative), it should be open to considering all methods of effective communication, particularly if the facts show that interacting with a representative does not obstruct the process.¹³ Indeed, at least one court found that it may be appropriate for an employer to participate in the interactive process with the employee's attorney.¹⁴

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The examples and discussion below provide additional guidance (combining real-life scenarios and language from cases and from the regulations) on how to navigate this often complex and confusing interaction.

Scenario One: Employee Sits out This Dance—or Does He?

The interactive process started out fine: Ryan told...