A California appellate court recently held that an employee must identify an available reasonable accommodation to succeed on a claim that his employer failed to engage in the interactive process, resolving an apparent split on the obligation. In Scotch v. The Art Institute of California-Orange County, Inc., Carmine Scotch, an instructor at the Art Institute of California ("AIC"), claimed AIC failed to undertake a thorough interactive process in connection with Scotch's disability. AIC reasonably accommodated Scotch's health limitations by allowing him to obtain an advanced degree through a part-time program, and Scotch further requested AIC consider alternatives to a newly-assigned part-time schedule to allow him to retain his health benefits; AIC did not. The trial court dismissed Scotch's claim.

On appeal, the court concluded a reasonable jury could find that AIC failed to continue the interactive process, but nonetheless affirmed summary judgment for the employer because the alleged failure was not material. Although AIC had a continuous obligation to engage in the interactive process, in opposing AIC's motion for summary judgment, Scotch failed to identify a reasonable accommodation that could have resulted from the continued interactive process. In finding the failure immaterial and affirming summary judgment, the court recognized the remedial purpose of the California Fair Employment Housing Act and its interactive process requirement, and observed that an employee suffers no injury from a failed interactive process when no reasonable accommodation otherwise existed.

In reaching its conclusion, the court distinguished between the employee's obligation during employment and during litigation: "An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself[,]" but "once the parties have engaged in the litigation process, to prevail, the employee must be able to identify an available accommodation the interactive process should have produced . . . ." While this decision is a victory for employers in the courtroom, it is not a "free pass" for employers that believe an employee's limitation cannot be accommodated. Rather, it underscores the importance of keeping communications with disabled employees open and exploring potential accommodations with such employees in good faith – because it is both the right thing to do and the best way to avoid the courtroom in the first instance.