Failure to accommodate injury is disability discrimination

Anahit Shirvanyan, 63 years old, worked as a kitchen staff at Los Angeles Valley College (LAVC), a licensed childcare facility in Van Nuys, CA, which is part of the Los Angeles Community College District.

After several years of work for LAVC, Shirvanyan began experiencing pain in her right hand and arm. This was due to her work duties which required her to regularly lift heavy grocery items and kitchen equipment. She was diagnosed with carpal tunnel syndrome. Shirvanyan said that after she complained to her boss about her pain, the supervisor reduced her hours. At some point, the supervisor also asked Shirvanyan why she wore a splint on her hand.

When Shirvanyan asked for help in pushing carts and moving heavy items, management ignored her requests. She was allegedly told, “Nobody is obligated to help you because they have their own work to do.” Shirvanyan’s health woes continued. She was told that she should consider retirement.

Shirvanyan later provided the employer a doctor’s note, requesting three months of leave to deal with her pain. However, Shirvanyan never heard back from the employer. She was compelled to sue her employer for failure to provide reasonable accommodation and for disability discrimination.

California law prohibits discrimination based on disability or medical condition. California law defines disability (whether mental or physical) as any disease, disorder, cosmetic disfigurement, anatomical loss, emotional or mental illness, or specific learning disabilities, which limits a major life activity. Working at a job is considered a major life activity.

The employer has a duty to provide reasonable accommodation to employees to enable them to work despite their disability.  Depending on the employee’s specific restrictions and the employer’s circumstances, the following are examples of reasonable accommodations:

1. Making facilities accessible to and usable by disabled individuals;
2. Job restructuring;
3. Offering part-time or modified work schedules;
4. Reassigning to a vacant position;
5. Acquiring or modifying equipment or devices;
6. Adjusting or modifying examinations, training materials or policies;
7. Providing qualified readers or interpreters

Sometimes allowing the employee a temporary leave of absence may be a reasonable accommodation if,

after the leave, the employee likely can resume his or her duties. Additionally, if the employee can no longer perform the former job’s duties, offering a vacant position may be a reasonable accommodation, even if the position pays less than the disabled employee’s former job.

The employer has the duty to find and offer suitable jobs for the employee. Simply telling the disabled employee to check available job postings in the company is not enough. The employer must in good faith determine whether a disabled employee can be transferred or reassigned to a vacant position. The employer is in a better position to know what jobs are vacant or may become vacant.

Additionally, the law entitles the disabled employee to “preferential consideration” in reassignment of existing employees. However, the employer is not required to promote or create a new position in order to accommodate a disabled employee.

After 15 days of trial, a jury found that the employer failed to engage in interactive process and failed to accommodate Shirvanyan’s disability. They returned a verdict in favor of the employee, awarding her $2,899,670 in damages.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, is the recipient of PABA’s Community Champion Award, and is a Presidential Awardee for Outstanding Filipino Overseas in 2018.]