Is there a separate cause of action for an employer's failure to engage in the interactive process?
Wysinger v. Automobile Club of Southern California
In 2007, the California Court of Appeal confirmed in Wysinger v. Automobile Club of Southern California, (2007) 157 Cal. App. 4th 413, that an independent cause of action for an employer's failure to engage in the interactive process exists under the California Fair Employment and Housing Act. In Wysinger, the plaintiff had requested a transfer to an office closer to his home as an accommodation for his rheumatoid arthritis, which was aggravated by his long commute. Id. at 418. His transfer was denied and no further dialogue occurred regarding potential accommodations for his arthritis. The jury found, and the court upheld its award, that the employer was liable for failing to engage in the interactive process.
The principle expressed in Wysinger applies in numerous circumstances. For example, in one case handled by The Rubin Law Corporation, our client had recently been hired as a store manager at a new branch when she was diagnosed with cancer. Excited and passionate about her new job, our client hoped to continue working as much as possible during her treatment. She requested reduced hours and her supervisor replied that he would speak with human resources and do what was best "for all of us." He then repeatedly tried to convince our client that it might be better for her to not work at all. Shortly after requesting a reduced schedule, our client learned that she would need surgery, which would require a leave of absence about a month later. She sent a doctor's note to her employer. A few days later, she was terminated. The employer made no effort to have any discussion with our client about how she might be accommodated. In addition to claims against her employer for discrimination, our client, relying on Wysinger, was able to bring an independent claim of failure to engage in the interactive process. Shortly after litigation commenced, the matter settled.
