The interactive process under Fair Employment and Housing Act represents a fundamental procedural safeguard that ensures meaningful dialogue between employers and disabled employees to identify effective reasonable accommodations. Government Code Section 12940(n) makes failure to engage in this process a separate unlawful employment practice, emphasizing its critical importance in disability rights enforcement.
Legislative Foundation: The Legislature has affirmed the importance of the interactive process, stating that it “affirms the importance of the interactive process between the applicant or employee and the employer in determining a reasonable accommodation as this requirement has been articulated by the [EEOC] in its interpretive guidance of the [ADA].” This acknowledgment demonstrates California’s commitment to incorporating best practices from federal disability law while maintaining its broader protections.
Employer Obligations: Employers must engage in a timely, good faith interactive process in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. The timing and good faith elements are crucial—employers cannot delay or approach the process superficially without risking liability.
FEHA regulations specify that employers must initiate the interactive process in several situations: when an employee or applicant with a known disability requests reasonable accommodation. When the employer becomes aware of the need for accommodation through a third party or by observation; or when the employer becomes aware of the possible need for accommodation because the disabled employee has exhausted leave under applicable statutes and further accommodation is necessary.
Significantly, if the employee claims a disability but was neither disabled nor regarded as disabled by the employer, there is no duty to engage in the interactive process. However, once the process begins, the employer bears continuing liability, taking some steps does not absolve the employer if it later causes a breakdown in the process.
Employee Responsibilities: While employers bear primary responsibility for initiating and maintaining the interactive process, employees have corresponding obligations. The employee must cooperate in good faith with the employer by providing reasonable medical documentation when the disability or need for accommodation is not obvious. Typically, employees must provide employers with a list of restrictions that must be met to accommodate the employee.
The employee’s failure to provide sufficient information regarding the nature and extent of disability so that the employer can determine its ability to accommodate the disability can be responsible for a breakdown in the interactive process. However, once a reasonable accommodation request has been granted, the employee has no continuing duty to ask again that it be provided, the employer has a duty to provide the agreed-upon accommodation.
Communication Requirements: The interactive process contemplates that employees and employers will communicate directly with each other, rather than through third parties, to exchange information about job skills and job openings. However, such direct communications, while preferred, are not required, and unusual circumstances may justify requiring employer to communicate through the employee’s attorney.
Confidentiality Protections: Medical information and records obtained as part of the interactive process must be maintained separate from the employee’s personnel file and kept confidential, except that supervisors may be informed of restrictions on disabled individuals’ duties and required accommodations, and first aid and safety personnel may be informed that the disabled person’s condition might require emergency treatment.
Independent Cause of Action: A critical aspect of FEHA’s interactive process requirement is that failure to engage constitutes an independent violation, separate from failure to accommodate claims. The Legislature has made the failure to engage in the interactive process a separate cause of action under Government Code Section 12940(n). This means employers can face liability even if no accommodation was ultimately possible, emphasizing the process’s intrinsic value.
Judicial Split on Accommodation Availability: Courts are divided on whether employer liability for failing to engage in the interactive process depends on showing that a reasonable accommodation was available. Some cases hold that failure to engage in good faith interactive process is unlawful only if reasonable accommodation was possible, requiring employees to identify an accommodation that the process should have produced. However, other cases hold that FEHA “allows an independent cause of action for employees whose employers fail to engage in the interactive process,” so employer liability does not depend on showing a reasonable accommodation was possible.
The interactive process serves multiple functions where it promotes mutual understanding between parties, helps avoid litigation, and ensures that accommodation decisions are based on complete information rather than assumptions. The process recognizes that accommodation is an individualized inquiry requiring dialogue between the person who knows their limitations best and the person who knows the job requirements and available alternatives.