Seyfarth Synopsis: The Court of Appeal held that police officer recruits who were not “qualified individuals” under FEHA for purposes of their discrimination claim could nonetheless prevail on their claim for failure to provide a reasonable accommodation, where they were qualified to fill a reassigned position. The City was required to temporarily assign injured recruit officers to light-duty administrative assignments in light of the City’s past practice of doing so. But a jury award of future economic damages through the time of retirement was overturned as speculative.
In Atkins v. City of Los Angeles, five LAPD recruits injured at the Police Academy sued the City after they failed to obtain the necessary medical clearance to return to the Academy and lost their jobs at the Department. In a jury trial, the recruits proved that under prior City policy, they would have been transferred to a program called “Recycle,” in which they could perform light-duty jobs until they were ready to return to the Academy. But then the City changed its Recycle Program to impose a six-month limit on how long a recruit can stay in the Program. The City informed the recruits, already recuperating in the Program, that they had to return to the Academy or lose their jobs. The recruits, unable to obtain clearance to return to the Academy, lost their jobs. They sued for disability discrimination, failure to accommodate, and failure to engage in the interactive process.
A Los Angeles jury found the City had violated the Fair Employment and Housing Act (FEHA) by discriminating against them because of their disabilities, by failing to provide them with reasonable accommodations, and by failing to engage in the interactive process. The jury awarded the recruits over $12 million in damages, including economic losses through the time of their hypothetical retirements as veteran police officers.
The City appealed, arguing that the recruits were not “qualified individuals” under FEHA, because they could not perform the essential functions of a police recruit position with or without reasonable accommodation, and because the City was not required to accommodate the recruits by making their temporary light-duty positions permanent or by transferring them to another job with the City. The City further argued that, because there was no open position available for the recruits, the City did not have to continue the interactive process.
The Court of Appeal’s Decision
The Court of Appeal agreed with the City that the recruits were not ‘qualified individuals’ under FEHA for purposes of a discrimination claim. The recruits had to show they could perform the essential functions of a police recruit to be qualified individuals. The Court of Appeal disregarded, in this context, the recruits’ argument that the relevant question was whether they could perform the essential functions of the positions to which they sought reassignment, including another civil City position or the light-duty position under the Recycle Program. The Court of Appeal explained that the recruits conflated the elements of a discrimination claim under Government Code section 12940(a) with the elements of an accommodation claim under section 12940(m). The Court of Appeal found that the goal of the Academy’s training program was to ensure that police recruits could perform as required in the field, and because the recruits could not pass that training program, they were not “qualified individuals.”
The Court of Appeal held differently, however, as to the accommodation claim. Because FEHA defines “reasonable accommodation” to include “reassignment to a vacant position,” (Gov’t Code § 12926(p)(2)), an employer may violate section 12940(m) if the employer fails to reasonably accommodate the employee through reassignment to a vacant position whose essential functions the employee can perform. To be a “qualified individual” under section 12940(m), the employee need only prove an ability to perform the essential functions of the reassigned position.
The Court of Appeal found that reassigning the recruits to the Recycle Program was a required option. While FEHA generally does not require indefinite accommodation of temporarily injured employees, the Court of Appeal found that the City violated FEHA because it denied the recruits the longstanding practice of allowing injured recruits to remain in the Recycle Program indefinitely until they healed and could return to the Academy, or until their disabilities became permanent. The Department changed this policy—to now allow reassignment for no more than six months—only after the recruits were injured and already in the Recycle Program. The Court of Appeal concluded that while FEHA does not require the Department to indefinitely accommodate recruit officers injured after the change in policy, the City could not apply the policy change retroactively to the recruits, to treat them differently from other recruit officers who were injured before the change in policy.
The Court of Appeal also rejected the City’s defense that maintaining the recruits’ reassignment would have been an undue burden, in that the City had allowed other recruits to remain in the Program longer than six months. While the City cited “economic burdens”—including a hiring freeze that prevented it from hiring new recruits—the City failed to demonstrate that it had sought to hire, and was prevented from hiring, new recruits.
Finally, the Court of Appeal held that the award of future economic damages was speculative. The recruits were trainees who had completed only a few weeks of training, but the jury assumed that they would have passed the Academy, completed their probationary periods, become career officers, and eventually retired from the Department after a long career. Therefore, the Court of Appeal ordered a new trial on the claim for future economic damages.
What Atkins Means for Employers
While the Court of Appeal conceded that employers can make a policy change to limit the duration of its light-duty rehabilitation programs for temporarily injured employees, an employer cannot retroactively apply that policy to employees already reassigned to light duty on an indefinite basis. Such a policy change may apply only to newly affected employees. Further, while an injured employee might not be a “qualified individual” under the general discrimination provisions of FEHA, that same employee might qualify under the accommodation provisions, entitling the employee to a reassignment.