Scotch v. Art Institute of California
To recover for an employer’s failure to engage in the interactive process, the employee must identify a reasonable accommodation that was actually available at the time the process should have occurred — even if that accommodation is identified only through later discovery.
Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986
Disability
Interactive Process
Reasonable Accommodation
FEHA
Affirmed
In brief. Reconciling a line of conflicting authority, the court held that “to recover under section 12940, subdivision (n)[,] the employee must identify a reasonable accommodation that was available at the time the interactive process should have occurred.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 994.) Although the employee “does not have the same access to information about possible accommodations as the employer does” during the process itself, “through the litigation process, including discovery, the employee must be able to identify a reasonable accommodation that would have been available.” (Id. at pp. 994–995, 1018–1019.)
Facts
Carmine Scotch was an instructor at the Art Institute of California (AIC). (173 Cal.App.4th at pp. 995–998.) He was HIV positive. (Ibid.) AIC reduced his teaching load to part-time status — a change that affected his eligibility for health benefits. (Id. at pp. 996–998.) Scotch contended the reduction occurred because of his HIV-positive status and that AIC had failed to accommodate his disability and to engage in the interactive process. (Ibid.) The accommodation he proposed was, in essence, priority in the assignment of courses so as to maintain a teaching load sufficient to keep his benefits. (Id. at pp. 1015–1018.) He sued under the FEHA for disability discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, and wrongful termination in violation of public policy. (Id. at pp. 998–999.)
Procedural history
The trial court granted AIC summary judgment on all claims. (173 Cal.App.4th at pp. 998–999.) On the discrimination claim, it concluded Scotch had not raised a triable issue connecting his HIV status to the reduction in hours. (Id. at pp. 999–1000.) The Court of Appeal affirmed, holding (among other things) that Scotch had failed to identify a reasonable, available accommodation necessary to support his interactive-process claim. (Id. at pp. 994–995, 1018–1019.)
Issue
To recover on a FEHA claim for failure to engage in the interactive process (Gov. Code, § 12940, subd. (n)), must the employee identify a reasonable accommodation that was actually available at the time the interactive process should have occurred — and was the priority-in-course-assignments accommodation Scotch proposed “reasonable”? (173 Cal.App.4th at pp. 994–995, 1014–1019.)
Holding
Yes, the employee must identify an available accommodation. “[T]o recover under section 12940, subdivision (n), the employee must identify a reasonable accommodation that was available at the time the interactive process should have occurred,” and may do so “through the litigation process, including discovery.” (173 Cal.App.4th at pp. 994–995.) Section 12940, subdivision (n), “is the appropriate cause of action where the employee is unable to identify a specific, available reasonable accommodation while in the workplace . . . but . . . is able to identify [one] through the litigation process.” (Id. at pp. 1018–1019.) Because Scotch’s proposed accommodation “was not reasonable” and he identified no other available accommodation, he could not recover. (Id. at p. 995.) Affirmed. (Id. at p. 1024.)
Reasoning
1. The interactive process, defined. The court restated the duty: both parties must “keep[] communications open,” “participate in good faith, undertake reasonable efforts to communicate [their] concerns, and make available . . . information which is available, or more accessible, to one party.” (173 Cal.App.4th at pp. 1013–1014.) “Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” (Id. at p. 1014.)
2. Reconciling Nadaf-Rahrov, Wysinger, and Claudio. The court confronted a split: must an interactive-process plaintiff identify an available accommodation, or is the failure to engage independently actionable? (173 Cal.App.4th at pp. 994–995, 1015–1019.) Reconciling Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, and Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, the court held that, “[i]n light of the FEHA’s remedial purpose,” the employee must ultimately “identify a reasonable accommodation that was available at the time the interactive process should have occurred.” (Id. at pp. 994–995.)
3. The litigation-discovery solution. The court balanced two truths. During the process itself, “employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have,” so they “cannot necessarily be expected to identify and request all possible accommodations.” (173 Cal.App.4th at pp. 1018–1019.) But “once the parties have engaged in the litigation process,” the employee “must be able to identify an available accommodation the interactive process should have produced.” (Ibid.) Section 12940, subdivision (n), thus fills the gap: it is the claim for the employee who could not identify an accommodation in the workplace but can show, through discovery, that one existed. (Ibid.)
4. Scotch’s proposed accommodation was unreasonable. The court held that Scotch’s requested accommodation — priority in course assignments to preserve a benefits-qualifying teaching load — was not a reasonable accommodation, because it would have required AIC to give him preferential treatment over other instructors or to provide a particular quantum of employment “which AIC was not required to provide.” (173 Cal.App.4th at pp. 1015–1018.) A reasonable accommodation enables an employee to perform essential functions; it does not entitle the employee to a guaranteed level of work or preferential assignment at others’ expense. (Ibid.)
5. The remaining claims. The court affirmed summary judgment on the discrimination claim (no triable causal link between HIV status and the reduction in hours) and on the retaliation, hostile-environment, and public-policy-termination claims. (173 Cal.App.4th at pp. 999–1013, 1019–1024.) Because no available reasonable accommodation was identified and no discriminatory causation was shown, the entire judgment stood. (Ibid.)
Significance
Scotch is the decision that settled how California courts treat the interactive-process claim: it is not a free-floating wrong, but requires the employee to identify a reasonable accommodation that was objectively available at the relevant time — provable through discovery if not in the workplace. Read together with Nadaf-Rahrov (the employee bears the accommodation-availability burden) and Green v. State of California (2007) 42 Cal.4th 254 (the plaintiff bears the qualified-individual burden), it completes the modern framework for FEHA accommodation litigation. Scotch is also a leading statement that a reasonable accommodation does not include guaranteeing a particular volume of work or preferential treatment over coworkers. It is cited in nearly every interactive-process case and informs the standard jury instructions (CACI No. 2546). See the Review’s coverage of the disability line.
Key quotes
“[T]o recover under section 12940, subdivision (n), the employee must identify a reasonable accommodation that was available at the time the interactive process should have occurred.” (Scotch, supra, 173 Cal.App.4th at p. 994.)
“[T]hrough the litigation process, including discovery, the employee must be able to identify a reasonable accommodation that would have been available during the interactive process.” (Id. at pp. 994–995.)
“Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” (Id. at p. 1014.)
Read the full opinion (California Court of Appeal — full text) →
Practice pointer
Find the accommodation in discovery. Scotch lets a plaintiff who could not name an accommodation in the workplace still prevail on the interactive-process claim — but only by identifying, through discovery, a reasonable accommodation that was actually available at the time. So use discovery to surface vacant positions, schedule modifications, equipment, or leave that would have worked, and tie the employer’s process breakdown to that concrete accommodation. Avoid Scotch’s trap: do not propose an “accommodation” that amounts to guaranteed hours, preferential assignment over coworkers, or a better position — those are not reasonable accommodations. Defendants should show either a good-faith interactive process or the absence of any available accommodation, which defeats the claim under Scotch.
Open questions
How broadly an employer must search for available accommodations, and how courts measure what “would have been available” at the time of the breakdown, remain fact-intensive. The line between a reasonable accommodation and impermissible preferential treatment — central to Scotch’s rejection of Scotch’s proposal — continues to be litigated, as does the interaction of the Scotch identification requirement with the employee’s limited access to information during the process itself.
See also: California’s Automated-Decision-Making (AI) Employment Regulations — An Employee’s Rights Guide.