In a recent case titled Scotch v. The Art Institute of California-Orange County, Inc. the employer defeated a disability accommodation lawsuit by demonstrating that it offered a reasonable accommodation, and that the employee was unable to establish any other alternative reasonable accommodations.
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Disability Law Update
School Lawfully Rejects
Instructor’s Request
For Disability Accommodation
By Christopher W. Olmsted
When an employee notifies an employer that he has a disability and needs accommodation, the employer is obligated to offer reasonable accommodations. What if the employee wants an “unreasonable” accommodation? In a recent case titled Scotch v. The Art Institute of California-Orange County, Inc. the employer defeated a disability accommodation lawsuit by demonstrating that it offered a reasonable accommodation, and that the employee was unable to establish any other alternative reasonable accommodations.
Instructor Lacks A Degree
The Art Institute of California is a design, media arts, and culinary arts school offering bachelor’s and associate’s degrees in, among other things, media arts and animation, and game arts and design. Carmine Scotch worked as an instructor.
The Institute’s accreditation standards require all faculty members who teach upper division courses to hold certain degrees and certifications. The institute made a few exceptions based on experience and qualifications. Nevertheless it encouraged instructors to seek the degrees, and offered to pay tuition.
Mr. Scotch did not have a master’s degree. Management encouraged him to obtain one, but did not pursue it.
Scotch received a poor performance review in early 2006. The poor score resulted from performance issues as well as the failure to pursue a master’s degree. In responding to the review, Scotch told his manager that he had “a life-threatening illness.” He claimed that the unidentified illness affected his job performance and ability to pursue the degree.
The manager immediately sent Mr. Scotch to speak to the director of human resources. Mr. Scotch told the HR director that he had HIV. The director never told anyone else at the Institute about the specifics of his medical condition.
The HR director arranged for a meeting with another manager to discuss the issue of the illness and performance. At the meeting, Mr. Scotch claimed that the performance review was retaliation for an earlier absence for illness.
It was decided that to accommodate Mr. Scotch’s illness, he could take a three year master’s degree program rather than the usual two year program.
A few months later, in mid-2006, the school experienced a decline in enrollment. Courses were cancelled, some instructors were laid off, and others were reduced to part time. In order to retain instructors with master’s degrees (who were more valued), the Institute decided to assign only instructors with masters degrees to upper-level courses.
Mr. Scotch didn’t have the degree, so his hours were reduced. He protested. Soon after, Scotch resigned.
The Lawsuit
Scotch sued. He alleged: (1) disability discrimination in violation of the Fair Employment and Housing Act (FEHA); (2) failure to maintain a discrimination-free environment in violation of the FEHA; (3) failure to engage in the interactive process in violation of the FEHA; (4) failure to accommodate in violation of the FEHA: (5) wrongful termination of employment in violation of public policy; (6) retaliation in violation of the FEHA; and (7) intentional infliction of emotional distress.
The trial court dismissed all of these claims when it granted summary judgment in favor of the Institute. Mr. Scotch appealed, and the appellate court affirmed the dismissal.
California Disability Law
The California Fair Employment and Housing Act provides the following rights and protections to disabled workers:
Discrimination: The FEHA makes it an unlawful employment practice to discharge a person from employment or discriminate against the person in the terms, conditions, or privileges of employment, because of physical or mental disability or medical condition.
Reasonable Accommodation: The FEHA imposes on the employer the obligation to make reasonable accommodation
Interactive Process: The FEHA makes it unlawful for an employer “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.”
Retaliation: The FEHA makes it unlawful for an employer to retaliate against an employee because the person has exercised his rights.
Mr. Scotch alleged that the Institute violated each of these provisions.
No Discrimination
Mr. Scotch argued that his course reduction was discrimination on account of disability. The court disagreed. The Institute had legitimate business reasons—the accreditation standards--for requiring all upper-division instructors to have master’s degrees. Moreover, the decision makers did not know that Mr. Scotch was HIV-positive.
Employer Offered Reasonable Accommodation
The instructor argued that the school should have accommodated his disability by giving him priority assignment of courses so that he could teach full time in the summer of 2006. He claimed that his disability prevented him from seeking the requisite master’s degree.
The court determined that the Institute was not required to give him preferential treatment. Looking to FEHA regulations, the court noted that examples of accommodation include, for example: “(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”
The court wrote: “His proposed accommodation is not reasonable under the definition we have adopted because it is not a ‘modification or adjustment to the workplace’ necessary to enable him to perform the essential functions of his position. . . . Scotch was not requesting assignment from a position he could not manage to one he could. Instead, Scotch explained the limitations created by his disability were that he needed to avoid stress and he could not pursue a master’s degree while teaching full time and fulfilling other professional development requirements—limitations addressed by [the school’s] accommodation. Scotch’s request of priority in assignment of lower division courses does not accommodate those limitations and was unnecessary to enable him to perform the essential functions of his position.
Unsubstantiated Claim For Failure To Engage In Interactive Process
The employee alleged that before the Institute reduced his hours, it failed to engage in the interactive process in an attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively.
The court suggested that perhaps the Institute could have met with Mr. Scotch more than once to discuss accommodations. Nevertheless, Mr. Scotch failed to meet his burden of proof in the litigation. In light of the fact that the Institute did offer reasonable accommodation to its employee, he failed to identify another reasonable accommodation that would have been available at the time the interactive process should have occurred. Another meeting to discuss accommodation would have been pointless.
The court asked rhetorically: “Put another way, if this case were presented to a jury, what remedy could it provide? How was Scotch damaged by any failure by the Insitute to engage in the interactive process in good faith?”
Accordingly, the Institute properly accommodated Mr. Scotch and did not discriminate against him based on his disability
Practical Tips
Discuss options. Although employers have discretion to choose among reasonable accommodations, it is important to meet with the employee to discuss these options in order to fulfill the FEHA’s “interactive process” mandate. In this case it so happened that no other options were possible, but had that not been the case, the outcome may not have favored the employer.
Limit disclosure. Avoid unnecessary disclosures of employee disabilities. In this case, the HR director helpfully refrained from disclosing the employee’s HIV-positive status to managers who implemented the workforce reductions, eliminating discriminatory motive from the decision-making process.
Objective criteria. Make personnel decisions based on objective criteria when possible. In this case, the school pointed to the master’s degree requirement, and offered legitimate business reasons for assigning degree-holders to teach upper division classes. It was undisputed that the plaintiff lacked this credential.
More Legal Update articles.
Download entire June 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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