The California Fair Employment and Housing Act ("FEHA") requires employers to engage in an interactive process to determine whether reasonable accommodation can be made to allow employees with known disabilities to perform the essential functions of their jobs. In Charles Gelfo v. Lockheed Martin Corporation, the California Court of Appeal held that an employer must engage in an informal interactive process with, and make reasonable accommodation for, an employee or applicant who is "regarded as" being physically disabled, even though the individual may not actually be physically disabled.

In Gelfo, the plaintiff sued his former employer for, among other things, disability discrimination and failure to accommodate in violation of the FEHA. Gelfo had been laid-off as part of a reduction in force while off work due to a workplace back injury. Lockheed later offered Gelfo a different position, but then rescinded the offer after it determined that his medical restrictions, which included no heavy lifting, rendered him unable to perform the essential functions of the new position, and that no reasonable accommodation was possible.

 The trial court concluded that:

  1. Gelfo was not "actually" disabled
  2. Lockheed owed no duty to provide a reasonable accommodation to an applicant who was not "actually" disabled
  3. Lockheed owed no duty to engage in an informal interactive dialogue with an applicant or employee who was not "actually" disabled; and
  4. Gelfo failed to establish an entitlement to punitive damages.

The only claim submitted to the jury was whether Lockheed violated FEHA by refusing to hire the plaintiff based on its perception he was physically disabled. The jury returned a verdict against him.

On review, the California Court of Appeal held that the lower court erred in failing to determine, as a matter of law, that Lockheed regarded Gelfo as physically disabled. The appellate court then concluded that an employer must engage in an informal interactive process aimed at determining whether a reasonable accommodation is possible, and provide reasonable accommodation to an applicant or an employee whom it regards as physically disabled, even though the employee may not be actually disabled.  

This is the first published California decision to determine the issue of whether an employer has a duty under FEHA to provide a reasonable accommodation to an applicant or employee who is not "actually disabled," but is "regarded as" having a disability. The court relied on a formulaic reading of the FEHA’s definition of "disabled," which includes not only "having" any number of conditions, but also "being regarded or treated by the employer… as having" such conditions (Govt. Code § 12926(k). The court also applied its broad reading of the term "disabled" to the portions of the statute that explain the duty to accommodate and engage in the interactive process (Govt. Code § 12965(m) & (n). 

Further, the appellate court disagreed with two federal cases which rejected such a formulaic reading of similar provisions in the Americans with Disabilities Act ("ADA"). In those two cases, the courts held that an employer is not required to make accommodation for individuals who are not actually disabled because "application of the reasonable accommodation requirement in cases of perceived disability under the ADA ‘would lead to bizarre results’…." (Quoting from Weber v. Strippit, Inc. (8th Cir. 1999) 186 F.3d 907, and referring to Kaplan v. City of North Las Vegas (9th Cir. 2003) 323 F.3d 1226 which similarly mentions "bizarre results.") In rejecting the holdings in these cases, the Gelfo court opined that the protections provided employees under FEHA are broader than those provided under the ADA, and that the statute must be liberally construed to "accomplish its purposes and provide individuals with disabilities the greatest protection."

In explaining its reasoning as to why the employer’s obligations to make accommodation and to engage in the interactive process extend to "regarded as" situations, the court of appeal quoted Jacques v. DiMarzio, Inc., a New York district court decision. In that case, the court noted that "the interactive process is more of a labor tool than a legal tool, and is a prophylactic means to guard against capable employees losing their jobs even if they are not actually disabled. It is clearly a mechanism to allow for early intervention by the employer, outside of the legal forum, for exploring reasonable accommodations for employees who are perceived to be disabled…." Jacques, 200 F.Supp.2d at p. 170.

The Gelfo decision reinforces the importance of training supervisors and other employees who communicate with injured workers regarding their injuries, or who make decisions regarding injured workers, in order to avoid any implication that such employees are "regarded as" disabled. Employers are further advised to seek legal counsel before taking any adverse employment action against an employee who could be "regarded as" disabled, despite not being "actually disabled" under the law.