Nadaf-Rahrov v. The Neiman Marcus Group, Inc.
An employee suing for failure to accommodate bears the burden of proving a reasonable accommodation was available — including reassignment to an existing vacant position the employee could perform — and the interactive-process claim depends on the availability of such an accommodation.
Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952
Disability
Reasonable Accommodation
Interactive Process
Reassignment
FEHA
In brief. A leading California decision on the mechanics of FEHA accommodation claims. The court held that an employee bringing a failure-to-accommodate claim “bears the burden of proving a reasonable accommodation was available before the employer can be held liable under the statute.” (Nadaf-Rahrov v. The Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 977–978.) Reassignment to a vacant position counts as a reasonable accommodation: the employee satisfies the “qualified individual” requirement “by showing he or she can perform the essential functions of the vacant position with or without accommodation,” though “[t]he position must exist and be vacant, and the employer need not promote.” (Id. at p. 965.)
Facts
Forough Nadaf-Rahrov worked as a clothes fitter — performing alterations — for The Neiman Marcus Group at its San Francisco store. (166 Cal.App.4th at pp. 959–961.) She developed recurrent back problems and carpal tunnel syndrome, and her physician imposed work restrictions. (Ibid.) In November 2003 she requested family medical leave, and her disability and inability to perform the fitter position continued for an extended period. (Ibid.) Neiman Marcus ultimately terminated her employment. (Id. at pp. 960–962.) Nadaf-Rahrov sued for disability discrimination, failure to provide reasonable accommodation, and failure to engage in the interactive process under the FEHA, contending the company should have accommodated her — including by reassigning her to a vacant position she could perform. (Id. at pp. 962–963.)
Procedural history
The trial court granted Neiman Marcus summary judgment on all claims. (166 Cal.App.4th at pp. 962–963.) The Court of Appeal reversed in part, holding that triable issues existed on whether a reasonable accommodation — potentially including reassignment to a vacant position — was available, and clarifying the burdens of proof governing the accommodation and interactive-process claims. (Id. at pp. 963–965, 984–985.)
Issue
Who bears the burden of proving the availability of a reasonable accommodation in a FEHA failure-to-accommodate claim; does reassignment to a vacant position qualify as a reasonable accommodation, and what must the employee show; and how does the availability of an accommodation bear on a claim for failure to engage in the interactive process? (166 Cal.App.4th at pp. 964–965, 977–984.)
Holding
(1) “The employee who brings a [failure-to-accommodate] claim bears the burden of proving a reasonable accommodation was available before the employer can be held liable under the statute.” (166 Cal.App.4th at pp. 977–978.) (2) Reassignment is a recognized accommodation: an employee “satisfies the ‘qualified individual with a disability’ requirement by showing he or she can perform the essential functions of the vacant position with or without accommodation,” but “[t]he position must exist and be vacant, and the employer need not promote the disabled employee.” (Id. at p. 965.) (3) Because the interactive process exists to identify an accommodation, an interactive-process claim requires that a reasonable accommodation was in fact available. (Id. at pp. 980–984.) Reversed in part. (Id. at pp. 984–985.)
Reasoning
1. The FEHA borrows from the ADA — by example. The court explained that the FEHA defines “reasonable accommodation” “only by way of example” (Gov. Code, § 12926, subd. (n); Cal. Code Regs., tit. 2, former § 7293.9), a “definition . . . virtually identical to” the ADA’s. (166 Cal.App.4th at pp. 963–964.) “Where a FEHA provision is modeled on an ADA provision, a federal regulation interpreting the ADA provision may be useful to guide construction.” (Id. at p. 964.) Reasonable accommodations are “modifications or adjustments to the work environment that enable a qualified individual with a disability to perform the essential functions” of the position. (Ibid., quoting 29 C.F.R. § 1630.2(o)(1)(ii).)
2. Reassignment to a vacant position. Drawing on federal law, the court recognized reassignment as a form of accommodation. (166 Cal.App.4th at pp. 964–965.) The employee “satisfies the ‘qualified individual with a disability’ requirement by showing he or she can perform the essential functions of the vacant position,” but two limits apply: “[t]he position must exist and be vacant, and the employer need not promote the disabled employee.” (Id. at p. 965.) The court rejected the view that an employer must create a new position or bump another employee. (Ibid.)
3. The employee bears the accommodation-availability burden. The court held that the “reasonable accommodation” language is “integral to the language of the provision,” not “textually subordinate or . . . phrased as an exception,” which “might [otherwise] indicate the burden of proof should be allocated to the employer.” (166 Cal.App.4th at pp. 977–978.) Policy confirmed the allocation: while “it would be unfair to require an employee in the workplace to unilaterally identify available accommodations, an employee in litigation can use discovery procedures to do so.” (Id. at p. 978.) Consistent with Green v. State of California (2007) 42 Cal.4th 254, the employee therefore “bears the burden of proving a reasonable accommodation was available.” (Ibid.)
4. The interactive process and its purpose. The court described the interactive process as “communication and good-faith exploration of possible accommodations . . . with the goal of identifying an accommodation that allows the employee to perform the job effectively,” in which “both sides must communicate directly, exchange essential information[,] and neither side can delay or obstruct the process.” (166 Cal.App.4th at pp. 984–985.) Because the process exists to find an accommodation, a claim for failing to engage in it requires that a reasonable accommodation actually existed; a breakdown that could not have produced any available accommodation causes no compensable harm. (Id. at pp. 980–984.)
5. Summary-judgment standard and disposition. Applying the ordinary summary-judgment framework — the moving defendant must show an element cannot be established or a complete defense exists, after which the burden shifts to the plaintiff to raise a triable issue (Code Civ. Proc., § 437c, subd. (p)(2)) — the court found Neiman Marcus had not conclusively negated the availability of a reasonable accommodation, including reassignment. (166 Cal.App.4th at pp. 962–963, 984–985.) It reversed summary judgment on the accommodation and related claims and remanded. (Ibid.)
Significance
Nadaf-Rahrov is the leading California authority on the burdens and mechanics of FEHA reasonable-accommodation and interactive-process claims. Together with Green v. State of California (which places the qualified-individual burden on the plaintiff) and Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986 (which holds that an interactive-process plaintiff must identify an objectively available accommodation), it defines what a disability plaintiff must prove and when. Its recognition of reassignment-to-a-vacancy as an accommodation — subject to the “must exist and be vacant / no duty to promote” limits — is routinely applied, as is its allocation of the accommodation-availability burden to the employee (mitigated by the availability of discovery). The decision is cited in virtually every California failure-to-accommodate case and informs the standard jury instructions (CACI Nos. 2541, 2546). See the Review’s coverage of the disability line.
Key quotes
“The employee who brings a [failure-to-accommodate] claim bears the burden of proving a reasonable accommodation was available before the employer can be held liable under the statute.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 977–978.)
An employee seeking reassignment “satisfies the ‘qualified individual with a disability’ requirement by showing he or she can perform the essential functions of the vacant position with or without accommodation. The position must exist and be vacant, and the employer need not promote the disabled employee.” (Id. at p. 965.)
The interactive process “requires communication and good-faith exploration of possible accommodations . . . [;] neither side can delay or obstruct the process.” (Id. at p. 985.)
Read the full opinion (California Court of Appeal — full text) →
Practice pointer
Identify the accommodation — and use discovery to find it. After Nadaf-Rahrov, a plaintiff must prove a reasonable accommodation was available, so develop, through discovery, the specific accommodation(s) that would have worked — modified duties, leave, equipment, or (critically) reassignment to an existing vacant position the plaintiff could perform. Remember the limits: the position must have been vacant, and the employer need not have created a job, promoted the plaintiff, or bumped another worker. Plead the interactive-process claim, but recognize that it ultimately depends on the existence of an available accommodation, so tie the two together. Coordinate with Green (qualified-individual burden) and Scotch (the interactive-process plaintiff must point to an objectively available accommodation). Defendants should document a genuine, good-faith interactive process and the absence of any available accommodation.
Open questions
How far an employer must search for vacant positions, over what time frame, and across what geography or business units, remains fact-intensive after Nadaf-Rahrov. Courts also continue to refine how the employee’s accommodation-availability burden interacts with the employer’s superior access to information about vacancies, and how an interactive-process breakdown is evaluated when the existence of an available accommodation is itself disputed.
See also: California’s Automated-Decision-Making (AI) Employment Regulations — An Employee’s Rights Guide.