Hanson v. Lucky Stores, Inc.
A finite leave of absence can be a reasonable accommodation under FEHA, and an employer that has reasonably accommodated a disabled employee need not also furnish the particular accommodation the employee prefers.
Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215
Subsequent development. After Hanson, the Legislature amended FEHA to make an employer’s failure to engage in a timely, good faith interactive process a separate, independently actionable unlawful employment practice (Gov. Code, § 12940, subd. (n), operative Jan. 1, 2001), and later decisions recognize that statutory duty. Hanson‘s holding that a finite leave can be a reasonable accommodation, and that an employer need not provide the accommodation the employee prefers, remains frequently cited and good law; its reasoning that there is no independent liability for failing to engage in an interactive process should be read in light of the later statute.
Disability & Accommodation
Reasonable accommodation
Finite leave
FEHA (Gov. Code § 12940)
In brief. In the published portion of this decision, the Court of Appeal held that a finite leave of absence can be a reasonable accommodation under the Fair Employment and Housing Act, “provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226.) On undisputed facts, Lucky had accommodated its injured meatcutter twice — by extending his leave to roughly sixteen months, nearly double the nine months the collective bargaining agreement required, and by offering him a vacant part-time meat clerk position — so it was not also required to furnish the hand brace, shift change, or other measures the employee preferred. (Id. at pp. 226–228.) Summary judgment for the employer was affirmed. (Id. at p. 230.)
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
The Fair Employment and Housing Act (FEHA) makes it an unlawful employment practice to discriminate against an employee because of physical disability, and it imposes on employers an affirmative duty of reasonable accommodation. As the court restated the duty, “an employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship.” (Hanson, supra, 74 Cal.App.4th at pp. 225–226, quoting Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950–951.) The statute illustrates reasonable accommodation with a non-exhaustive list that includes “[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position,” and the “modification of equipment or devices.” (Id. at p. 226, quoting former Gov. Code, § 12926, subd. (m).) Because the statutory list is “incomplete,” the court looked to federal disability law “for guidance.” (Ibid.)
Wayne Hanson was a journeyman meatcutter for Lucky Stores, a member of the United Food and Commercial Workers Union whose employment was governed by a collective bargaining agreement (CBA) providing up to nine months of leave for an on-the-job injury. (Hanson, supra, 74 Cal.App.4th at p. 220.) In December 1993 Hanson broke his hand and injured his wrist at work; surgery to fuse the wrist followed in December 1994, and “[f]rom the time of the accident, Lucky extended Hanson’s leave at least eight times spanning sixteen months.” (Ibid.) His treating physician released him to work on May 15, 1995, but precluded him from “heavy lifting, repeated bending, pulling, pushing and prolonged periods of standing,” and reported that Hanson had “lost 50 percent of the grip and strength in his right arm for any activity.” (Ibid.)
Hanson “admit[ted] that to perform his job as a meatcutter he must be able to lift heavy carcasses, repeatedly bend, pull, and push heavy objects, and stand for prolonged periods of time,” and Lucky concluded it could not return him to that job consistent with his restrictions. (Hanson, supra, 74 Cal.App.4th at pp. 221–222.) Lucky’s human resources manager and its workers’ compensation supervisor reviewed job descriptions, consulted Hanson’s physician and his vocational rehabilitation provider, and “concluded the only available job at Lucky that Hanson could perform was as a part-time meat clerk,” which they offered him in early August 1995. (Id. at p. 222.) Hanson refused the offer, did not report to work, and Lucky treated his employment as terminated effective August 31, 1995. (Ibid.)
Procedural history
Hanson sued for disability discrimination under FEHA and for wrongful termination in violation of public policy. (Hanson, supra, 74 Cal.App.4th at p. 221.) Lucky moved for summary judgment, contending that Hanson was not denied reasonable accommodation — because it had both extended his leave and offered him a vacant alternative position — and that he could not show its legitimate business reasons for terminating him were pretextual. (Ibid.) The trial court (Judge Joseph R. Kalin) granted the motion, finding that Hanson failed to demonstrate pretext and failed to dispute that Lucky could not have made accommodations that would have returned him to the meatcutter job. (Id. at pp. 222–223.)
The Court of Appeal, Second Appellate District, Division Three, affirmed in an opinion by Justice Aldrich, with Presiding Justice Klein and Justice Kitching concurring. (Hanson, supra, 74 Cal.App.4th at pp. 219, 230.) The opinion is certified for partial publication: the court resolved the pretext question against Hanson in an unpublished portion, and addressed reasonable accommodation in the published portion, explaining that “in any event, Lucky provided Hanson with two reasonable accommodations.” (Id. at p. 219.) This analysis rests only on the published portions of the opinion, as required by California Rules of Court, rule 8.1115; the unpublished pretext discussion is neither citable nor relied upon here.
Issue
The published question was whether the employer was entitled to summary judgment on the FEHA disability-discrimination claim on the ground that it had reasonably accommodated the employee as a matter of law — and, embedded in that question, whether a finite leave of absence qualifies as a reasonable accommodation, whether an employer that has provided reasonable accommodations must also provide the specific additional measures the employee requests, and whether an employer may be independently liable for failing to engage in the interactive process when the employee was in fact accommodated. (Hanson, supra, 74 Cal.App.4th at pp. 225–229.) Review of the summary judgment was de novo. (Id. at p. 223.)
Holding
Summary judgment for the employer was proper. In the published portion of its opinion the court held: “We hold that a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.” (Hanson, supra, 74 Cal.App.4th at p. 226.) On the undisputed facts, “Lucky attempted to reasonably accommodate Hanson, not once, but twice” — by granting roughly sixteen months of leave, “nearly twice the allowable period” under the CBA, and by offering him a vacant part-time meat clerk position consistent with his medical restrictions. (Id. at pp. 226–227.) Because Lucky had provided reasonable accommodations, it was not also obligated to furnish the hand brace, shift reassignment, “ergonomic knives,” or change of “hand dominance” Hanson preferred: “[t]he employer is not obligated to choose the best accommodation or the accommodation the employee seeks.” (Id. at pp. 227–228.) “All told, Hanson has raised no triable issue of material fact that Lucky provided him with no reasonable accommodation,” and his derivative public-policy claim failed with his FEHA claim. (Id. at pp. 229–230.)
Reasoning
FEHA’s accommodation duty is affirmative but bounded, and federal law informs its content. The court grounded the employer’s obligation in the affirmative duty recognized in Prilliman and in the statutory illustrations of reasonable accommodation — “reassignment to a vacant position” and “part-time or modified work schedules” among them — while noting that the statutory list is “incomplete” and that California courts may look to the analogous federal disability statutes “for guidance.” (Hanson, supra, 74 Cal.App.4th at pp. 225–226 & fn. 7.) That framing let the court import federal authority holding that leave can be an accommodation, but only a qualified one.
A finite leave of absence is a reasonable accommodation — when recovery is likely. Surveying federal decisions, the court explained that “a finite leave of absence has been considered to be a reasonable accommodation under the ADA, provided it is likely that following the leave the employee would be able to perform his or her duties,” but that an employer “is not required to offer an accommodation that is likely to be futile because, even with accommodation, the employee could not safely and efficiently perform the essential functions of the job.” (Hanson, supra, 74 Cal.App.4th at p. 226, quoting Schmidt v. Safeway Inc. (D.Or. 1994) 864 F.Supp. 991, 996–997.) Adopting that rule for California, the court “h[e]ld that a finite leave can be a reasonable accommodation under FEHA,” subject to the same likelihood-of-recovery proviso. (Ibid.) Crucially, “[r]easonable accommodation does not require the employer to wait indefinitely for an employee’s medical condition to be corrected.” (Id. at p. 227, quoting Gantt v. Wilson Sporting Goods Co. (6th Cir. 1998) 143 F.3d 1042, 1047.)
Applied here, Lucky accommodated Hanson twice. The “seven extra months of leave beyond the CBA period that Lucky granted Hanson for the purpose of recuperation constitute[d] a reasonable accommodation,” and “[t]he fact that at the end of his leave, Hanson was restricted from engaging in certain activities, does not render the leave accommodation itself unreasonable.” (Hanson, supra, 74 Cal.App.4th at p. 227.) When Hanson returned with restrictions, Lucky “further attempted to assist his reentry” by identifying and offering “the only available position for which Hanson qualified,” a part-time meat clerk post whose part-time nature responded directly to his physician’s restriction against prolonged standing. (Ibid.)
An employer need not provide the employee’s preferred accommodation. Hanson argued that Lucky should have acquired or modified equipment — a hand brace, “ergonomic knives,” a different shift, or a change of “hand dominance” — to return him to the meatcutter job. The court rejected the contention “for two reasons.” (Hanson, supra, 74 Cal.App.4th at p. 227.) First, the only medical evidence offered, Dr. Kornblum’s report, did not say bracing would let Hanson return to that job; to the contrary, the doctor wrote he did “not believe … that it will allow him to return to his regular work activities.” (Id. at pp. 227–228.) Second, and as a matter of law, “Lucky made two other reasonable and effective accommodations available,” and “[t]he employer is not obligated to choose the best accommodation or the accommodation the employee seeks.” (Id. at p. 228, citing Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370.) Citing federal authority, the court reasoned that “an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided.” (Ibid., quoting Hankins v. The Gap, Inc. (6th Cir. 1996) 84 F.3d 797, 800–801.)
On this record, no independent liability for failing to engage in an interactive process. Hanson contended that Lucky failed to engage him in the interactive process to identify accommodations. Relying on then-current federal authority, the court held that the disability statutes “do not … create independent liability for the employer for failing to engage in ritualized discussions with the employee to find a reasonable accommodation.” (Hanson, supra, 74 Cal.App.4th at p. 228, quoting Barnett v. U.S. Air, Inc. (9th Cir. 1998) 157 F.3d 744, 752–753.) The court stressed the undisputed facts: Lucky’s representatives consulted Hanson’s physician and his vocational rehabilitation specialist (who relayed Hanson’s wish to remain in the meat department), compared his restrictions against job descriptions, and offered him the one position he could fill. (Id. at pp. 228–229.) Requiring “Lucky to discuss the same issues with Hanson himself,” the court concluded, “would unreasonably laud form over substance,” especially where “the employee was reasonably accommodated not once but twice.” (Id. at p. 229.) As explained in the status note above, this branch of the reasoning predates the 2001 statutory amendment that made failure to engage in a good faith interactive process an independent FEHA violation.
Significance
Hanson is a foundational California authority for two propositions that recur in disability-accommodation litigation and that inform CACI No. 2541 (failure to provide reasonable accommodation). First, it establishes that a leave of absence — even a long one — can be a reasonable accommodation, and conversely that “[r]easonable accommodation does not require the employer to wait indefinitely.” (Hanson, supra, 74 Cal.App.4th at p. 227.) That dual-edged holding is cited by both sides: plaintiffs invoke it to argue that additional finite leave was a required accommodation, while employers invoke it to argue that they need not extend leave where recovery is not likely or where they have already provided substantial leave. Second, it confirms that an employer who has provided a reasonable accommodation need not also provide the employee’s preferred one — the rule later embodied in the instruction that the accommodation need only be reasonable, not ideal. (Id. at p. 228.)
The decision’s limits are equally important. It is a summary-judgment affirmance on undisputed facts in which the employer had unusually strong proof of accommodation — sixteen months of leave and a documented, individualized search for alternative work. And its interactive-process discussion has been overtaken in part: the Legislature subsequently made an employer’s failure to engage in a timely, good faith interactive process a separate unlawful practice under Government Code section 12940, subdivision (n), so Hanson should not be read today to immunize an employer that ignores the interactive process. The reasonable-accommodation holding, however, remains durable and frequently cited.
Key quotes
“We hold that a finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.” (Hanson, supra, 74 Cal.App.4th at p. 226.)
“Reasonable accommodation does not require the employer to wait indefinitely for an employee’s medical condition to be corrected.” (Id. at p. 227.)
“The employer is not obligated to choose the best accommodation or the accommodation the employee seeks.” (Id. at p. 228.)
Practice pointer
For plaintiffs, Hanson teaches that a failure-to-accommodate claim must engage the accommodations the employer actually offered. If the employer extended leave and offered a vacant alternative position, do not simply argue that a different (preferred) accommodation existed — the employer “is not obligated to choose … the accommodation the employee seeks.” (Hanson, supra, 74 Cal.App.4th at p. 228.) Attack instead the reasonableness or effectiveness of what was offered, or marshal medical evidence that a further finite leave was likely to restore the ability to perform — the precise showing Hanson lacked, because his own examiner said bracing would not return him to his job. (Id. at pp. 227–228.) And because the Legislature later made failure to engage in the interactive process independently actionable (Gov. Code, § 12940, subd. (n)), a modern plaintiff should plead that claim separately rather than rely on Hanson‘s pre-amendment “no independent liability” language. For employers, Hanson is a template: document the individualized search — review of restrictions against job descriptions, consultation with the treating physician and any rehabilitation provider, and a concrete offer of the best available vacant position — so the accommodation defense can be established on undisputed facts. (Id. at pp. 222, 228–229.)
Open questions
The published opinion expressly declined to resolve the parties’ dispute over the “essential functions” of the meatcutter job, holding that question “not material to our resolution of the case” because the accommodation analysis disposed of the claim regardless. (Hanson, supra, 74 Cal.App.4th at p. 222, fn. 5.) The court also did not decide how long a finite leave must be tolerated, or at what point the likelihood of recovery becomes too speculative to require further leave — it held only that sixteen months sufficed here and that an employer need not “wait indefinitely.” (Id. at p. 227.) Finally, because the interactive-process holding rested on pre-2001 federal law, the decision leaves to later cases — decided under the now-codified subdivision (n) duty — the contours of when a failure to engage in the interactive process is itself actionable even though some accommodation was provided.