New Decision Underscores the Broad Risks in the Return to Work Process
 Dec. 13, 2010

On October 19, 2010, in an administrative action designated as "Precedential," the Fair Employment and Housing Commission (FEHC) concluded that Avis Budget Group violated the California Fair Employment & Housing Act (FEHA) by discriminating against a customer service representative with mental disabilities.

It cost the company $89,863.70 (including $14,863.70 in back pay and $50,000 in emotional distress damages; and $25,000 in administrative fine to the General Fund), plus affirmative relief of postings and training for management personnel regarding reasonable accommodation. And, that doesn’t count the cost of defending itself in this lengthy proceeding.

The Commission found that Budget discriminated against an employee with a non-occupational mental illness by treating her differently than it did employees with physical disabilities or those with workplace injuries. The employer violated the law by:

1. Failure to Make a Reasonable Accommodation. FEHA concluded that Budget failed to reasonably accommodate the representative, who worked at the SFO airport, by forcing her to take a five month involuntary unpaid leave and then
requiring her to work a 16-hour per week schedule which reduced her pay, caused her to lose her medical benefits, and exposed her to a layoff. Further, it improperly rejected her request for a 30-hour schedule, the necessity of which was
confirmed by both her doctor and the doctor retained by the company.

2. Failure to Engage in the Interactive Process. During her five month involuntary unpaid leave, Budget failed to return her phone calls or otherwise communicate with her to determine if her requested accommodation was reasonable or to explore other alternatives. It "simply decided to give her a 16-hour workweek and ignored her objections." According to the FEHC decision: "Budget’s process for determining a reasonable accommodation for Reed was neither interactive nor in good faith within the meaning of the FEHA."

3. Unlawful Inquiries about Her Disabilities. Budget violated FEHA by (1) not giving the employee or her doctor the opportunity to answer its questions before insisting that she see a psychologist it retained; and (2) requiring her to either
authorize access to her psychiatric medical records or agree to a medical examination by the company approved doctor.

4. Discrimination Based on Mental Disability. Before discovering that she had a mental disability, Budget granted all of her accommodation requests for medical leave and shortened work weeks. It also accommodated two other employees by giving them reduced hours because of their work-related injuries. But, when it learned she had a mental disability, it placed her on involuntary, unpaid five month leave and returned her to fewer hours than her mental disability necessitated. This is why the FEHC concluded she was treated differently from other similarly situated employees.

5. Failure to Take Reasonable Steps to Prevent Discrimination. FEHC concluded that the evidence established that Budget failed to take all the reasonable steps necessary to prevent discrimination from occurring. It (1) did not have a reasonable accommodation policy; (2) failed to train its HR staff and supervisors on how to respond to a reasonable accommodation request, (3) failed to respond to her calls about requested accommodation during her five month leave, and (4) used an accommodation request form that improperly requested access to her medical records and health care provider.

Under FEHA, employers have a double-edged responsibility, both for their actions and any failure to conduct the appropriate
interactive process. The judgment against Avis Budget Group reflected their failings in both these areas. Employers must be more than just "aware" of their responsibilities for conducting the interactive process with disabled employees. They must have practices in place and be able to document their conduct. Failing to do so creates an exposure to loss that may not be covered by insurance. As an employer, the best practice is to have a complete understanding of your obligations under FEHA and procedures in place that ensure effective compliance with those obligations.

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