class 7 - the law of discrimination pt 2

Question 1

Age - The Age discrimination in employment act

Answer 1

Aging population = older workforce
There are laws protecting them from discrimination on the job

• ADEA - The federal Age Discrimination in Employment Act prohibits discrimination against those 40 years old or older
• It applies to private business with 20 or more employees as well as the federal government
• Although the ADEA also protects state government workers, these workers cannot file a lawsuit against the state for age discrimination
• Only the EEOC can take action to protect state employees rom age discrimination
• As is true of Title VII, the ADEA prohibits discrimination in hiring, firing, compensation and all other aspects of employment
• The ADEA prohibits you from discriminating against older workers in favor of those younger than 40. But also, with workers who are 40+ you can not give favorable treatment to younger members of that group

Question 2

Age - The reverse is not true

Answer 2

The reverse is not true
- Within the group of workers who are 40 years + you are permitted to treat older workers more favorably
- For example, upon retirement, current employees who are 50+ will continue to receive health care coverage. You don’t need to promise future benefits to current employees under 50

Younger workers may be less competent, need more training and may be more expensive
–> A desire to save is not a legitimate business reason to discriminate against older workers

Question 3

Age - The older workers benefit protection act

Answer 3

The federal older worker benefit act makes it illegal for your business to use an employee’s age as the basis for discrimination in benefits

Like the adea, this covers employees who are at least 40 years old

Under this law, you cannot, for example, reduce health or life insurance benefits for older employees, not can you stop their pensions from accruing if they work past their normal retirement ages.

The act also discourages your business from targeting older workers when you cut staff

One provision that is clear regulates the legal waivers that some employers ask employees to sign in connection with early retirement programs

You might, for example, offer a handsome retirement package to induce an older employee to leave your company voluntarily
As part of the process, you’d assk the employee to sign a waiver– often called a release or covenant not to sue in which the employee would agree not to take legal action

Question 4

The law sets limits on your use of such waivers as they relate to age discrimination claims under the ADEA:

Answer 4

1) You must write the waiver in plain English.
2) The waiver can’t cover rights or claims that may arise after the worker signs the waiver.
3) The waiver must specifically state that the worker is waiving any rights or claims the worker may have under the federal Age Discrimination in Employment Act.
4) You must offer the worker something of value—something over and above what you already owe to the worker—in exchange for the waiver.
5) You must advise the worker, in writing, to consult with a lawyer before signing the waiver. (Of course, you can’t require the worker to hire a lawyer.)
6) You must give the employee a fixed period of time in which to decide whether to sign the waiver. That period must be at least 21 days if the waiver has been presented to the employee alone. If you’ve presented the waiver to a group or class of employees, you must give each worker at least 45 days to decide whether or not to sign. In either case, a worker has seven days after agreeing to such a waiver to revoke the decision

In addition, if you’re making the offer to a group or class of employees as part of an incentive program to encourage early retirement, you must tell each employee in writing and plain english what class or group of employees is covered by the program, the eligibility requirements, any time limits for the offer, job titles and ages of the individual to whom the offer is being made and the ages of all employees in the same job classification or unit who are not eligible for the program

The most prudent course of action is to provide the information any time you seek a waiver form an employee who’s at least 40 years old if you’re also offering a retirement incentive package to other employees

Question 5

Age - Avoiding age discrimination claims

Answer 5

• Avoid subtle stray remarks
• Apply performance standards evenhandedly to all employees regardless of age
• Offer equal training opportunities for employees of all ages

Question 6

Pregnancy

Answer 6

The federal Pregnancy Discrimination Act (PDA) is an amendment to Title VII. Under the PDA, it’s a form of gender discrimination to treat an employee differently because of pregnancy, childbirth or related medical conditions. If a woman is affected by such a condition, you must treat her the same way that you treat other people in the workforce who are either able or unable to work

You can violate the PDA if you fire a woman whose pregnancy keeps her from working but you don’t fire other workers who are temporarily unable to do their jobs because of other physical problems

You can not lay off a worker or put her on leave because you think it’s in her ebay interest to stay home

The PDA requires employers to treat pregnant women with job restrictions like it treats other employees who are temporarily unable to do their jobs

An employer that offers accommodations to all temporarily disabled employees must also offer them to pregnant employees

An employers that doesn’t provide such accommodations to any employees need not make an exception only for pregnant employees

Question 7

Sexual orientation and Transgender Status

Answer 7

Title VII doesn’t list sexual orientation or gender identity as protected characteristics, like race or religion.

In 2020, the USSC ruled ina landmark case (Bostcok v Clayton County, Goergia) that discrimination based on sexual oritentation and gender identity are forms of sex discrimination which is illegal under Ttitle VII

Gender identity includes how a person dresses or expresses themselves

Employers subject to title VII (those with at least 15 employees) are barred from discriminating against workers on the basis of sexual orientation or gender identity in any aspect of employment, including hiring, promotion, pay and benefits, discipline and termination

The law also bans workplace harassment based on sexual orientation or transgender status

Question 8

State and Local Anti Discrimination laws

Answer 8

State and local laws also tend to go into more detail and may protect employees from discrimination on other bases as well such as marital status or receipt of government benefits

People who have these characteristics fall into what are called “protected classes”

Usually for employers with 5 or more employees

Question 9

The Americans with Disabilities Act

Answer 9

The ADA passed in 1990 and was significantly amended in 2008 by the ADA Amendments Act (ADAAA)

• One part of the ADA sets out rules for how businesses must deal with job applicants and employees. That part of the law, known as Title I is explained her
• Basically, the ADA states that in making hiring and employment decisions, it’s illegal to discriminate against anyone because of a disability. Some may need an accomodation– special equipment, perhaps or simple adjustment in their working conditions to help them get the job done
• If a person is qualified to do the work, or to do it once a reasonable accommodation is made, you must treat that person the same as all other applicants and employees

Question 10

ADA - What businesses are covered?

Answer 10

If you have 15 or more employees working for you for 20 or more weeks during the current or previous calendar year. Part-time employees are counted

Question 11

ADA - Who is protected?

Answer 11

• A person must not only have a disability, but must also be qualified for a particular job

People with disabilities
–> A person must either:
1) Have a physical or mental impairment that substantially limits one or more major life activities
2) Have a record being substantially limited, or
3) Be regarded as having a disability

Impairment limiting a life activity
Major life activities include:
Taking care of oneself
Hearing
Walking
Bending
Learning
Thinking
Performing manual tasks
Eating
Standing
Speaking
Reading
Communicating
Seeing
Sleeping
Lifting
Breathing
Concentrating
Working

Question 12

The ADAAA continued…

Answer 12

The ADAAA makes clear that impairments of bodily functions that might limit major life activities also count as disabilities. These include functions of the immune system, normal growth, digestion, bowel and bladder functions or neurological brain, respiratory, circulatory, endocrine or reproductive functions

In the past, substantial limitation meant that an employee must be very significantly restricted by a disabling condition

If a mitigating measure like a medication or medical device helped the employee do their job, the employee was not considered substantially limited in a major life activity thus not disabled

Now, an employer cannot take mitigating measures into account
- If a person’s disability can be overcome by medications or medical devices, the person may nonetheless be considered by a person with a disability
- This does not work with vision and corrective lenses/glasses

The ADAAA interprets the phrase “substantially limited” more broadly than courts have interpreted in the past. The ADAAA considers a condition that “materially restricts” an individual to be substantially limited in performing a major life activity even if that person is not prevented, or significantly restricted from performing that activity

Question 13

record of impairment

Answer 13

The ADA also protects people with history of a disability– cancer or heart disease for example– whose illnesses are either cured, controlled or in remission

It also protects people with a history of mental illness

If a person has a record of disability and you rely on that record to reject that person for a job, that’s a violation of the ADA if the person is currently qualified to do the work

Question 14

regarded as impaired

Answer 14

Some job applicants do not have a disability, but employers perceive and treat them as if they do. Acting on false perceptions means that the employer discriminate against these people

Question 15

ADA coverage is broad

Answer 15

can’t discriminate in any aspect of employment (applications, firing, benefits etc.)

In addition, you can’t deny a job to someone or discriminate against an employee because that person is related to or associates with a person who has a disability, For example you can’t:
- refuse to hire someone because that person’s spouse, child, or other dependent has a disability
- refuse to hire someone because that person’s spouse, child, or other dependent has a disability that’s not covered by your current health insurance plan or that may cause increased health care costs, or
- fire an employee because that employee has a roommate or close friend who has AIDS, or because the employee does volunteer work for people who have AIDS

Question 16

People who are qualified for the job

Answer 16

A person must not only have a disability; the person must also be qualified to do a particular job

This emphasizes a key point about the ADA: You don’t have to hire or retain anyone who can’t do the work

However, you may have to offer an accommodation that will allow the employee to get the job done

Question 17

How to see if a disabled person is qualified for a job in your business

Answer 17

Step 1: Define the essential job functions
- Make sure you know what skills and abilities the job requires

Step 2: Determine whether the person
- Look at the person’s education, work experience, training, skills, licenses, certificates and other job related requirements such as good judgment or the ability to work with other people

Step 3: Determine whether the person can perform the essential functions of the job
- Consider if the employee can do the job with or without a reasonable accommodation from you

The ADA puts a lot of weight on two words: essential functions
–> Many people with disabilities who were able to perform the basic tasks necessary for a job were denied employment because they couldn’t meet requirements that were marginal at best
–> If you can write an accurate job description that identifies the essential functions of a job, you’ll have an easier time deciding whether people with disabilities and all other applicants are qualified for the job

Question 18

expectations to coverage

Answer 18

Certain people and conditions aren’t protected by the ADA

1) Users of illegal drugs
- People can’t claim they’re disabled and entitled to ADA protection because they illegally use drugs. This includes people who use prescription drugs illegally as well as those who use illegal drugs

2) Specified conditions and behaviors
- The ADA states that the term “disability” doesn’t include the following conditions or behaviors:
– transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders
– compulsive gambling, kleptomania, or pyromania, or
– psychoactive substance use disorders resulting from current illegal use of drugs

3) Physical and psychological characteristics
- Physical characteristics (eye, hair color, left-handedness or height or weight within a normal range) are not treated as disabilities. Nor are personality traits such as poor judgment or quick temper
- Environmental, cultural or economic disadvantages are not disabilities

Question 19

terminations

Answer 19

You don’t have to hire or retain an employee who would pose a direct threat to the health or safety of other employees or to their own health or safety. But be careful. You can’t deny employment to a person with a disability because of a slightly increased risk. If you turn down an applicant or fire someone you’ve already employed, you must be prepared to show there is or would be a significant risk and a high probability of substantial harm if that person remained part of the workforce

You can sometimes get rid or reduce the health or safety risk through a reasonable accommodation

Psychological behavior is more difficult to evaluate

However, if an employee is violent, aggressive or destructive– or makes threats– the worker may pose a direct threat to the safety of others

Question 20

When accommodations are required

Answer 20

1) Job applicants
- Someone using a wheelchair may need an accommodation if the hiring office or interview site isn;t wheelchair accessible, you may need to move the interview to a place that the applicant can access, a person with bad eyesight may need help filling out an application; you may need to provide the needed assistance at company expense

2) Job performance
- Someone with poor hearing may need a special telephone that amplifies voices to perform a job. You may need to provide such a telephone at the company’s expense

3) Access to benefits
- Employees with disabilities must have unrestricted access to lunchrooms, lounges, restrooms, meeting rooms, and other services such as health programs, transportation and social events

Question 21

undue hardship

Answer 21

The ADA doesn’t require you to accommodate a disabled applicant or employee if it would place an undue hardship on the business– if it would require significant difficulty or expense
Whether something is an undue hardship is decided on a case-by-case basis

The net cost of the accommodation:
- The cost of accommodating an employee may be less than it first appears
- You may qualify for a tax credit or deduction

Question 22

undue hardship continued

Answer 22

1) The size of the business and its financial resources
- Obviously, larger and wealthier businesses are better able to put money into accommodations

2) The structure of the business
- A small facility that’s part of a larger company may have access to funds from the home office. If so, the company’s total resources become part of the equation

3) The impact of the accommodation on business operations
- Even an affordable accommodation might be an undue hardship

You don’t have to make an accommodation for an employee if that means it impacts/harms/inconveniences other employees

Question 23

Deciding what accommodations are needed

Answer 23

You are legally required to engage in an interactive dialogue with the employee

If a person with a disability asks for an accomodation, chances are excellent that the individual will be able to explain the functional limitations to you

The EEOC recommends that you consult with the employee or applicant to identify potential accommodations and assess how effective each would be in enabling the person to do the job

Question 24

Improving accessibility

Answer 24

The ADA doesn’t require you to change existing facilities unless an until a particular applicant or employee with a particular disability needs an accommodation

Then, the modifications should meet that individual’s work needs

You don’t have to make changes to provide access in places or facilities that won’t be used by that person

Here are some workplace alterations you might consider:
Install a ramp at the entrance to your building.
Remove raised thresholds.
Reserve wide parking spaces close to the worksite for people in wheelchairs.
Provide accessible toilet stalls, sinks, soap, and towels in restrooms.
Rearrange office furniture and equipment.
Make drinking fountains accessible.
Provide clear paths to copying machines, meeting and training rooms, lunchrooms, and lounges.
\Remove potential hazards from the path of blind people.
Add flashing lights to alarm bells to alert hearing-impaired people in an emergency

Question 25

Workers with emotional or mental impairments

Answer 25

According to the EEOC, about 13% of ADA cases involve workers claiming emotional or psychiatric impairment
Includes anxiety disorders, depression, bipolar disorder, schizophrenia

Question 26

Workers with emotional or mental impairments - covered disorders

Answer 26

The ADA protects workers who have a mental impairment that limits a major life activity or have a record of such an impairment. The impairment must be more than just a short-term problem: Such as:
jane has had major depression for a year with hard symptoms

Question 27

Handling Psychiatric Information

Answer 27

Your job application form must not ask about mental or emotional illness or psychiatric disability, treatment or hospitalization

You may not ask any disability-related questions before you offer someone a job

You can inquire further if an applicant asks for a reasonable accommodation for hiring process itself

After you offer someone a job, you can require a medical or psychiatric exam as long as you do the same for all entering employees in that job category

Question 28

Reasonable accommodations mental conditions

Answer 28

Examples of some accommodations that may be reasonably be required for a person with a mental disability include:

• giving the employee time off from work or a modified work schedule
• allowing the option to work remotely
• installing room dividers, partitions, or other soundproofing or visual barriers between workspaces for an employee who has trouble concentrating
• moving an employee away from noisy machinery or lowering the volume or pitch of telephones
• providing a job coach
• modifying a workplace policy, and
• adjusting supervisory methods

Question 29

medical exams

Answer 29

After you hire someone, the rules are even tougher
Any medical exam or medical inquiry about the employee must be job related and justified by business necessity
You may order an exam if you learn of a problem related to job performance or safety, but, again, the exam must be related to job performance

You can, however, order a medical exam or make medical inquiries if an of the following is true:
- An employee is having difficulty performing the job effectively.
- An employee becomes disabled.
- The exam is needed for you to make a reasonable accommodation to an employee’s disability.
- Exams, screening, or monitoring are required by other laws. You can also conduct medical exams and tests as part of wellness and health screening programs, but only if they are voluntary

Question 30

enforcement

Answer 30

The EEOC sometimes investigates charges of discrimination and attempts to resolve any discrimination it finds

If those attempts don’t succeed, the EEOC may sue on its own or may issue a right-to-sue letter tot he person who filed the charge

The EEOC has acknowledged that disputes about ADA requirements are often the result of misunderstandings between employers and people with disabilities. It emphasizes that those who have a conflict should try to resolve these disputes through informal negotiation or mediation if possible

Question 31

(SKIT): The Case of the Age of Google

Answer 31

Context: It is July 24, 2004 in San Jose, California. Brian Reid, age 54, is the now-former Director of Operations and former Director of Engineering at Google. The conversations with Mr. Reid are taking place in retrospect and took place when he was in their midst

Legal Question:
Did Google discriminate against Mr. Reid because of his age?

Initial Thought: Yes (illegal)

Final Thought: Yes (illegal)

Outcome:
Trial court threw out Reid’s case because they thought it was a neutral reason. The Court of Appeal reversed this and is in favor of Reid. Can’t ignore the context of the remarks. The California Supreme Court agreed with the court of appeal and voted in favor of Reid. They settled (??)

Discussion:
53 years old at the time with a Ph.Da dn years of experience but he reported to a 38 year old with less experience (fact check)
Many people in the office were younger than him
Teased by many people for his age
Higher up made it a mission to make sure he leaves by calling him not a cultural fit– keeping him out of their departments
Not illegal to do this, but is illegal if it is for an illegal reason
Performance review stated he met expectations
They wanted to not give him a bonus because they were concerned about a judge thinking they were harsh
Pretended he had the option to work at other departments but emails were passed around in different departments like HR basically making it clear they did not want him either
They’re eliminating the position
Cultural fit
Culture is keeping older workers out
Strongest evidence
Statistical correlation between age and promotion/performance rating
The person (Urs) who decided they should have him terminated previously stated he is too older to have his ideas matter

Question 32

HANDOUT 1:
(EX) Prohibited Age Discrimination
and
(EX) Older Workers Benefit Protection Act
and
The legal effect of “stray remarks”

Answer 32

(1) Prohibited Age Discrimination:
The federal Age Discrimination in Employment Act (“ADEA”) prohibits discrimination against those age 40 or over. The ADEA prohibits an employer from discriminating against older workers in favor of younger workers, even younger workers who themselves are older than 40 . The ADEA does allow the selection of a younger worker over an older one based on merit.
You can favor older workers over younger workers based on federal law (state laws vary like NY). Can’t do this with race and other protected classes though because age changes race doesn’t. Mandatory retirement is generally illegal unless they meet a specific salary. Avoid remarks that seem discriminatory. You should offer training for all workers, not just younger workers. (More info on pg 214)

Under California law, the use of salary as the basis for terminating employment may be found to constitute age discrimination if use of that criterion adversly impacts older workers as a group.
(Source: Text, pp. 221-222; Cal. Govt Code §12941.)

(2) Older Workers Benefit Protection Act:
The OWBPA (federal) makes it illegal for a business to use an employee’s age as the basis for discrimination based on benefits. For example, under this law, you cannot reduce health or life insurance benefits for older employees. The OWBPA also imposes requirements on any covenant (agreement) not to sue that an older worker is asked to sign upon termination in exchange for something of value. For example, an older worker must be given at least 21 days to decide such a waiver and at least 45 days if the waiver is presented to a group of employees. After they sign they have 7 days to take it back (this is a provision). Settlement money is sent on the 8th day.
(Source: Text, pp. 222-223.) In the 45 days you should tell them the ages of the positions laid off.

(3) The legal effect of “stray remarks”:
Most federal courts interpreting the federal anti-discrimination law have ruled that stray remarks by a person charged with (responsible/decision-maker) an employment decision – that is, remarks that may suggest bias but are remote, isolated, or otherwise unrelated to the decision — do not establish discrimination. (Rose v. Wells Fargo & Co. (9th Cir.1990) 902 F.2d 1417, 1423 [decision maker’s reference to employee as member of “an old-boy network” does not establish age discrimination]; Merrick v. Farmers Ins. Group (9th Cir.1990) 892 F.2d 1434, 1438-1439 [decision maker’s reference to successful applicant for position as “a bright, intelligent, knowledgeable young man” does not prove age discrimination].)

In interpreting the California anti-discrimination law, California courts do not disregard consideration of stray remarks in deciding whether to dismiss a discrimination case before trial. Although stray remarks may be weak evidence of discrimination, they may reinforce stronger evidence of discrimination.

Question 33

HANDOUT 2
Sexual Orientation Discrimination

Answer 33

Sexual Orientation Discrimination
The U.S. Supreme Court has ruled that the provision in Title VII of the Civil Rights Act of 1964 prohibiting discrimination on the basis of sex prohibits discrimination against gay and transgender individuals. In Bostock v Clayton County, the Supreme Court explained that “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a neccesary and undisguisable role in the decision, exactly what Title VII forbids.”

California law prohibits employment discrimination based on a person’s percieved or actual sexual orientation. In addition, while an employer may require an employee to adhere to reasonable workplace appearance, grooming, and dress standards, an employer must allow an employee to appear or dress consistent with the employee’s gender identity. Employers (under federal law) need 15 employees or more in order to have employees be protected. California’s anti discrimination law states 5 employees.

(Sources: Bostock v Clayton County (2020) 590 U.S. ; Cal. Govt §§ 12926(m); 12940(a); 12949. See also text, pp. 220-221)

Question 34

(SKIT): The Case of the Guitar Man

Answer 34

Context: It is Wednesday, January 2, 2008. Kurt Listug, CEO and co-founder of Taylor Guitars, an El Cajon-based manufacturer and wholesaler of acoustic guitars, has gathered the leaders of his sales staff

Legal Questions: Was Robert fired because of his disability?

Initial Thought: Yes

Final Thought: Yes

Outcome: Threw out his claim of disability discrimination. Failed to show he was disabled. Court of appeal reversed this and said it was both age and disability discrimination. He had shown he was disabled. Everyone at the company knew he was using the cane and had slow speech. His sales were ahead of trends. Ended up settling..

Discussion:
He had a stroke after he went to the chiropractor after the company recommended this specific one
Returned after 3 months
Wasn’t the same after he returned to work - slower speech, uses a cane and has a hard time walking, balance and strength
The CEO told him to knock of the act– saying he was faking it all
Stroke did not affect his work performance (explicitly stated)
Robert shows evidence (?) and explicitly said it wasn’t affect his performance and Robert isnt taking meds
2004 sales for the business: first time in 20 years sales fell - this was not all on Robert. They were ahead of the industry though
Gave Robert a “must improve” (?)
Said robert was not outgoing or friendly
They only complained after he was fired
Is he disabled?
Isn’t taking meds
He was the same who hired and fired

Yes
Kurt had it out for him after his stroke
Kurt made a comment about Robert faking it
Impacted his walking and his ability to work (speaking)
They could have made accommodations
Perceived disability–mocking him, terminating him

No
Performance review was field with negatives
He denied it impacted his job
Poor performance

Question 35

HANDOUT 3:
Disability Discrimination
and
What is a “Disability” under California Employment Law?
and
What Must a Worker Prove To Establish Disability Discrimination Under California Law?
and
How Does the Law Determine Whether a Worker is Qualified for the Job?
and
Duty of Reasonable Accommodation
and
Interactive Process Required

Answer 35

(1) Disability Discrimination
To be covered under the federal Americans with Disabilities Act, a business must have 15 or more employees. Part-time employees are counted. Under California’s FEHA, employers with 5 or more employees are covered..

(2) What is a “Disability” under California Employment Law?
A disability is any physical or mental condition that limits a major life activity. “Major life activity” includes such functions as caring for one’s self, performing manual tasks, walking, seeing, hearing, breathing, learning, and working. “Limits” is determined without regard to mitigating measures, such as medications, assistive devices, prosthetics, or reasonable accommodations. In other words, an employee is considered disabled if, without the aid of such a device or medication, the employee would be limited in performing a major life activity.

(Sources: Govt Code §12926(k); Cal. Code Regs., tit. 2, §7293.6(e)(1)(A)(2)(a). See also Legal Rights of Persons with Disabilities (Cal. Dept. of Justice), pp. 1-2, available at: Introduction to State and Federal Disability Rights Laws - Legal Rights of Persons with Disabilities (ca.gov).)

(3) What Must a Worker Prove To Establish Disability Discrimination Under California Law?

To establish disability discrimination in employment, the complaining person must prove:

1. That he or she was an employee of the defendant.
2. That the employer knew that the complaining party had a physical or mental condition that limited a major life activity or treated the complaining party as if he or she did have such a disability or that the employer knew that the complaining party had a history of having such a condition or treated the complaining party as if he or she had such a history of treatment.
3. That the complaining party was able to perform the essential job duties with or without reasonable accomodations.
4. That the complaining party was subject to an adverse employment action.
5. That the complaining party’s disability was a motivating reason for the adverse action.

(Source: Judicial Council of California Civil Jury Instructions 2540.)

Under federal law, by contrast, a worker must be qualified for a particular job and have a recognized disability that: substantially limits a major life activity; or have a known record of such an impairment; or be regarded as having such an impairment.

(4) How Does the Law Determine Whether a Worker is Qualified for the Job?
The two-step process to determine whether a worker is qualified for a job is: (1) determine whether the worker has the necessary skills, experience, or other job related attributes such as good judgment; and (2) determine whether the worker may perform the essential functions of the job with or without accomodation.

(5) Duty of Reasonable Accommodation
The requirement that an employer make a reasonable accommodation for a worker with a disability simply means that the employer may have to make some changes to help a disabled person do a job. (Text, p. 232.) A reasonable accommodation may include: job restructuring; offering modified or part-time work schedules; and providing paid or unpaid leave for treatment.

No accommodation is required if it would place an undue hardship on the business, meaning that it would require signiciant difficulty (operational) or expense. What constitutes an undue hardship is decided on a case-by-case basis. The size of the business and its financial resources are among the factors taken into account in determining whether a particular accommodation is required.

(Sources: Text, pp. 232-239; Cal. Govt Code §12926(n)(2); 2 Cal. Code of Regs. §7293.9(a); “Disability Under the Fair Employment and Housing Act,” p. 8.)

(6) Interactive Process Required
The law requires the employer to engage in a timely and good-faith interactive process with the employee with a disability to determine an appropriate and effective accommodation that will enable the worker to do the job. An employer is not required to choose the accommodation the employee seeks, though that should be considered. Instead, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.

(Text, pp. 235-236; Cal. Govt. Code §12940(n); Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228.)