Most California Employees have heard about reasonable accommodations. But what are they? Who is entitled to them? And what can you win if your employer fails to give you one? Keep watching to find out. Some basics – The California Fair Employment and Housing Act prohibits employment discrimination. Section 12940(a) outlines a whole bunch of areas of protected categories that companies are not allowed to fire people. We’ve all heard about a lot of them: race, religion, sexual orientation, gender. For purposes of this reasonable accommodation video, it’s all about people with disabilities and people who are religious. Okay, what in the heck does that mean? Well, in its essence, a employer is not allowed to discriminate against somebody who is disabled. However, some people who are disabled have limitations in what they can physically do, and sometimes those limitations come into conflict with what their employer wants them to do (or the essential functions of the job or their job duties – however you want to say it). So, a reasonable accommodation is when the employer slightly tweaks the job function for that employee so that they can perform the essential functions of the job. It’s very similar with people in religion – where somebody has a certain faith requirement (like they can’t work on Sundays) and the employer wants them to work on Sundays. Well that’s obviously in conflict. The law says that employers are required to reasonably accommodate people of faith when their faith slightly conflicts with their job duties. That’s the basics of what reasonable accommodation law is all about. We’re first going to review the religion requirements. Then we’re going to talk about disabilities. And then we’re going to talk about what is “reasonable” and what isn’t. And finally the video will end with us talking about the damages that an employee can win (the monetary damages that they can win) if their employer violates the law. Let’s first quickly talk about religion. Section 12940(L)(1) says that California employers must explore all available reasonable means to accommodate that employees religious beliefs or observances. That means an employer needs to try to find an accommodation when that employers requirements conflict with that employees religious beliefs. But, they must be reasonable! Again, we’ll examine what is reasonable later on in this video. But for purposes of this discussion right now, the employer is literally required to explore that. And if you don’t have any evidence that the employer has tried to explore the reasonable accommodations for that employees beliefs or observances then the company is going to have a hard time prevailing in court. Section (L)(2) of that same law says that it is not reasonable to simply segregate a religious employee away from the workforce. You can’t do that. Section (4) of the same law says that if an employee requests a reasonable accommodation the employer is not are allowed to retaliate against them for making the request. People think about retaliation is the employees complaining. If the employee simply requests an accommodation. and it’s denied, and the employer fires them for making that request, that could very easily fall within the definition of retaliation. Okay, let’s look at a real world example. There’s a really well-known case about a Jehovah’s Witness. It’s a California case where the employee is Jehovah’s Witness. And for years he attended a Jehovah’s Witness Conference. It was very important to him. He went to his employer said “Hey, I’ve been attending this conference for years, it’s very important to me, can I have these two days off?” The employer said no. Well the employee went anyway; he just didn’t go to work those days. The employer fired him, he filed a lawsuit, and he prevailed. It’s very easy to think that an employer could allow an employee to take two days off to attend a religious conference. Not a big deal! If an employee wants to wear a hijab at work, there’s case law it says it is reasonable to allow them to do that (even if it doesn’t conform with your company image). A well-known retailer got tagged with that – a case that went all the way to the United States Supreme Court. So, when the employees request is reasonable accommodate them! When most people hear about “reasonable accommodations” – they’re thinking about disabled workers. And the California Fair Employment and Housing Act, same section, 12940 Subsection (a)(1) and (2) say that employers are allowed to fire employees who have physical disabilities or mental disabilities if those employees cannot perform the essential functions of the job with or without a reasonable accommodation. What does that mean? Basically think of it in the reverse. If the employee can do the job, and they’re disabled, the employer can’t fire them for that disability! If the employee can do the job with a reasonable accommodation the employer can’t fire that employee for that disability. Simple as that! But if the employee cannot perform the essential functions of the job with a reasonable accommodation then the employer is allowed to fire them. Subsection (n)(1) of that same statute further clarifies what the law is. It says that employers are required to provide a reasonable accommodation if they know of the physical or mental disability and a reasonable accommodation is available. What does that mean? Basically, the employee doesn’t necessarily have to ask for the reasonable accommodation. The employer cannot hide behind the fact – “We knew about the disability, but the employee never asked for an accommodation.” If they know about it, they can’t fire that employee for the disability. Very important. Now subsection (n) of the same law isn’t necessarily about reasonable accommodations. What it says is that the employer is required to engage in the “interactive process” to find a reasonable accommodation. What does that mean? Basically, the employer needs to be proactive in looking for a reasonable accommodation, engage with that employee if they can’t perform the essential functions of the job and they have a disability. If, after engaging in that interactive process, they find that there is no reasonable accommodation, then they can fire them as is allowed under subsection (a)(1) & (2). So, it’s very important that the employer be proactive. If you’re an employee and you were fired because you have a disability, and the employer wasn’t proactive with you, there was no discussion about reasonable accommodations, and the employer knew about your disability, contact an employment lawyer. What makes an accommodation “reasonable?” Very good question! And there’s not a perfect answer! But the law gives us some guidance. The California Fair Employment and Housing Act section 12926(u) is the Fair Employment and Housing Act’s definition of “undue hardship.” Basically if the requested accommodation causes undue hardship on the employer they don’t have to accommodate. What does “undue hardship” mean? Well, it’s a factor test. The law lays out several factors that the jury would consider. Included on that factors test are the cost of the requested accommodation, the difficulty, the size of the employer, how many employees are there. And at the end of the day the requested accommodation is a jury question! Which means that twelve people in a box, in the jury box, who don’t care about you, and don’t care about the company, are going to look at the case from an objective standpoint and decide whether or not your request was reasonable or not. So, you can think about it like this – A request to a multi-billion dollar company for a five hundred dollar chair specific to help your disability is probably reasonable. But that same request, to a company that has two employees, or they’re losing money every year because they’re a start-up, might not be reasonable. And it really depends on the circumstances of the case. So, you need to think really hard about what your requested accommodation is. Consult with your doctor as to the best way in the easiest way for the employer to accommodate and then request that. And have a doctor’s note to back you up. Because it makes it far more likely to a jury to find it reasonable if a doctor asked for it and it’s not going to cost the company a lot of money. If you request an accommodation, and you’re denied and fired, what kind of financial remedies are available for you? Well, it’s pretty simple. You first can win your economic damages. If you are making one hundred thousand dollars a year at a company and then you become disabled you request an accommodation, and they don’t grant it – they fire you well, you’re not making $100,000 a year anymore! So that’s a very tangible economic loss that a jury can measure. Similarly, if you’re fired due to your religious beliefs or because you’re disabled that has a devastating emotional impact on you. We call those “emotional distress damages” which are often the largest component of these cases. They’re the damages for the pain and the suffering that somebody goes through as a result of being discriminated against. Very real damages. Third, if you win, and you prove your case with malice, oppression, or fraud – the company acted so egregious – well, you can win punitive damages. You know, everybody’s heard about punitive damages! Those are the damages meant to punish the employer to deter them from ever doing this again. Well, they’re relatively rare and very difficult to win, but if you get a good employment, lawyer good lawyers are able to ring that bell more often than others. And finally, if you win, because this is a part of the Fair Employment and Housing Act, you can also win your attorney fees. Now the attorney fees generally go to the attorneys, but that is a significant hammer and potential liability that most employers don’t want to pay for. That often pushes them into early settlement discussions anyway. I hope you found this video helpful. Take care!