Retail employer violated FEHA by not offering reassignment to a vacant position
 Dec. 3, 2013

A California Court of Appeal affirmed a trial court judgment finding that Neiman Marcus failed to engage in the interactive process by not offering alternative positions to a disabled worker. Ms. Forough Nadaf-Rahrov worked as a fitter at a Neiman Marcus store in San Francisco. Her responsibilities included hand-sewing knit items and making alterations to women's evening gowns. In November 2003, she was diagnosed with arthritis and polymyalgia rheumatic, an inflammatory arthritis affecting her knees, hips and s houlders. Neiman Marcus placed Nadaf on leave under the FMLA based on a doctor's statement that she was unable to work until Jan. 10, 2004. The doctor extended the leave through March 5, 2004.

On Jan. 21, 2004, Nadaf wrote a letter to the human resources manager, inquiring about alternate positions with the company. Her doctor wrote a letter on Jan. 25, 2004, recommending that Nadaf be assigned to a position that doesn't involve bending, standing or kneeling. On Feb. 16, 2004, the HR manager wrote Nadaf a letter saying her FMLA leave was exhausted as of Feb. 1, 2004, and because she would not be able to return until March 5, the company was not holding her position open. Nadaf's doctor extended the return-to-work date to May 5, then June 28, then Aug. 16. On July 14, Butler notified Nadaf that she had been terminated after exhausting all her FMLA leave and sick leave.

Nadaf filed a complaint alleging disability discrimination under the Fair Employment & Housing Act (FEHA) for failure to engage in the interactive process to find her a suitable position within the company. The complaint also alleged wrongful termination and retaliatory discrimination. Initially, a judge dismissed the case on the grounds that Nadof hadn't established a claim sufficient to take to a jury, but Nadof successfully appealed. When the case finally went to trial, Nadof testified that she could not perform the functions of a fitter, but she could do the job of a sales associate, makeup artist or customer service representative. Her doctor also testified that these positions would be within Nadaf's restrictions. The HR Manager testified that she thought the letter from Nadaf's doctor meant that she couldn't return to any kind of work. She said it would not have been productive to discuss alternative positions with Nadaf until she was cleared to work.

The jury awarded Nadof $128,230 in damages, finding a failure to engage in a good faith interactive process to identify alternative work and failure to reasonably accommodate. The judge then awarded $1.28 million in attorneys' fees under FEHA. Neiman appealed, arguing that there was no substantial evidence that Nadaf was qualified to fill any open positions at the store and that the HR Manager had no personal knowledge of open positions. The appellate justices concluded that as an HR manager, she would have knowledge of, or access to information about what positions were filled. The court ruled that the jury could have reasonably concluded that the HR Manager knew of and was competent to testify about the positions.

This case is consistent with both the new FEHA regulations that provide disabled employees preferential consideration over other candidates for any open position if the employee is qualified for the job, can perform job tasks within his/her restrictions and the reassignment is a reasonable accommodation. Also, as we've previously reported in this newsletter, reassignments to a vacant position have been determined to be a necessary workplace accommodation when it will facilitate returning an employee to work after illness or injury.

Prevention Strategies: Always consider reassignment to a vacant position when modifications to the employee's regular position are not a viable option. Make this a regular part of your interactive process analysis and make sure that you have gathered the most up to date information on alternative open positions before reaching a conclusion to deny an employee an opportunity to stay at work or return with permanent restrictions.

For labor, employment and education law questions, call us at (602) 448-4051 or email to Our Business is Keeping Your Business Out of Court TMİ 2013 Proactive Law Press, LLC. Licensed to Eyres Law Group, LLP


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