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EMPLOYER LIABLE FOR FAILURE TO ACCOMMODATE NON-DISABLED EMPLOYEE

Charles Gelfo was a metal fitter for Lockheed Martin (Lockheed), who injured his back at work. During the pendency of his Worker’s Compensation claim, Gelfo was laid off as part of a reduction in force and placed on a recall list. Later, Lockeed offered Gelfo a fabricator position. In the meantime, Gelfo received a Worker’s Compensation award on the grounds that he was 42.2% permanently disabled. When Lockheed learned of the medical restrictions imposed by doctors in connection with Gelfo’s Worker’s Compensation claim, it revoked the fabricator job offer, on the grounds it could not accommodate Gelfo’s physical limitations. In disputing the revocation of the job offer, Gelfo asserted that he could perform the essential functions of the fabricator job without any accommodation.

When Lockheed did not re-offer the job, Gelfo sued on various theories, including disability discrimination in violation of the Fair Employment and Housing Act (FEHA).

Under FEHA, an employer must engage in a timely, good faith interactive process and make reasonable accommodations for a disabled employee. An employee is disabled if he is actually disabled or if his employer regards him as disabled.

Lockheed prevailed on its argument that Gelfo, consistent with his assertions of good health, was not actually disabled and therefore could not maintain a claim for disability discrimination on the basis of actual discrimination. This gave rise to a question of first impression in California: Can an employer be held liable under FEHA for failing to engage in the interactive process or failing to provide reasonable accommodation for an employee who is not actually disabled but is merely regarded –mistakenly – as disabled?

The court of appeal answered in the affirmative. Although Lockheed argued that accommodating employees who are not actually disabled would be futile, the court reasoned that the FEHA must be construed liberally in order to further the societal goal of eliminating discrimination, which is harmful to employees whether an employer discriminates because the employee is actually disabled or because the employer mistakenly believes the employee is disabled. Since it is not practical to attempt to distinguish between disability and the perception of disability, the Gelfo decision underscores the importance of engaging in the interactive process with any employee that an employer has reason to believe may be disabled, before taking any action that materially effects the terms and conditions of employment.

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Related Attorney(s):
Soojin Kang

Related Practice Area(s):
Employment and Labor Law