Failure to Accommodate Employee on Single Instance Can Constitute Failure to Accommodate under FEHA Despite History of Accommodations

Yesterday, in A.M. v. Albertsons, a California Court of Appeal affirmed a $200,000 judgment against Albertsons for failing to accommodate an employee’s physical disability under California’s Fair Employment and Housing Act (FEHA).

The plaintiff in Albertsons was “diagnosed with cancer of the tonsils and larynx. She underwent chemotherapy and radiation treatment. The treatment affected her salivary glands, which left her mouth very dry. To counter this, [plaintiff] had to constantly drink water. As a result of the large volumes of water she consumes, she has to go to the bathroom to urinate frequently.”

As an accommodation, Albertsons agreed to allow plaintiff to have a beverage at her checkstand and allowed her frequent bathroom breaks (“sometimes as often as every 45 minutes”). After providing these accommodations for over a year, an Albertsons’supervisor at the store in which plaintiff worked—who apparently was unaware of plaintiff’s disability or the prior accommodations afforded by Albertson—refused to allow plaintiff a bathroom break after several requests. As a consequence, plaintiff urinated on herself while standing at the checkstand. A full account of what happened is truly appalling and those interested should refer to the opinion published by the Court of Appeal.

Abertsons had made an unsuccessful motion for a nonsuit to the trial court arguing that “a single incident could not constitute a failure to accommodate.” The Court of Appeal rejected this argument as follows:

In our view, to adopt this interpretation of a failure to accommodate would be inconsistent with the FEHA. The statute does not speak of a pattern of failure and Albertsons cites no case authority supporting its interpretation of the FEHA failure to accommodate statute requiring one.

Accordingly, disabled employees need not demonstrate a “pattern of failure” to provide accommodations on the part of their employers in order to prevail on a failure to accommodate claim under FEHA. A single failure to accommodate—provided that it is not merely trivial—is actionable as a violation of FEHA.

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