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Although recruits were not qualified for original positions, the police department should have temporarily reassigned them to administrative jobs
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Although five Los Angeles police recruits who suffered temporary injuries during training were not "qualified individuals" under the California Fair Employment and Housing Act (FEHA), and so could not prove their claims for disability bias, they were still entitled to damages on failure to accommodate claims. The city could have temporarily assigned them to light-duty administrative positions instead of discharging them, the California Court of Appeal ruled, upholding a jury's finding of liability. The court, however, overturned the part of the jury's award designed to compensate for future economic damages, finding it speculative and excessive.
Each of the five recruits suffered temporary injuries while training at the police academy. At the time they were injured, the department had been assigning injured recruits to light-duty administrative positions indefinitely until their injuries healed or they became permanently disabled. The department ended this practice while the five recruits were still recuperating from their injuries. Rather than allowing them to remain in their light-duty assignments, the department asked them to resign or the department would terminate them, unless they could get immediate medical clearance to return to the academy. None of the recruits was able to obtain the necessary clearance, and the department terminated or constructively discharged all of them. The five recruits sued the city.
The jury found that the city unlawfully discriminated against the recruits based on their physical disabilities and failed to provide them reasonable accommodations.
[SHRM members-only toolkit: Accommodating Employees' Disabilities]
The city challenged the jury's verdict on a number of grounds, including that the plaintiffs were not qualified individuals under FEHA because they could not perform the essential duties of police recruits and that 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.
Recruits Entitled to Damages for Failure to Accommodate
The appellate court agreed with the city that the recruits were not qualified individuals under FEHA for purposes of their discrimination claim. The evidence at trial showed that, in general, recruit officers must be able to perform the essential functions of police officers and that these functions include demanding physical tasks. The evidence further showed that, because of their injuries, the five recruits would not be able to perform these tasks.
The court went on to conclude that although the jury therefore erred in finding that the recruits proved their bias claim, there was another basis for its award of damages—that the city failed to provide reasonable accommodation as required by FEHA by refusing to allow the recruits to remain in their light-duty positions.
When an employee with a disability requests reassignment as an accommodation, "FEHA requires the employer to offer the employee 'comparable' or 'lower graded' vacant positions for which he or she is qualified," as long as such a position is available and reassigning the worker would not impose an undue burden on the employer, the court said.
Further, although a claim for failure to accommodate also requires an employee to show that he or she is a qualified individual under FEHA, where the employee contends that an employer failed to accommodate by reassigning him or her to another position, the employee proves qualification by showing an ability to perform the essential functions of the position to which reassignment is sought, not the essential functions of the existing position.
The appellate court concluded that requiring the city to assign temporarily injured recruits to light-duty administrative assignments was not unreasonable in light of the city's past policy and practice of doing so and that the recruits were qualified individuals with respect to those positions.
The court finally concluded that an employer's duties under FEHA, including the duty to provide reassignment as a reasonable accommodation, extended to probationary employees, including the recruits in this case.
Portion of Damages Too Speculative
On appeal, the city also challenged the jury's award of future economic damages as speculative and excessive. Despite the fact that the recruits had completed only hours or weeks of their academy training, the jury awarded each of them future economic losses through the time of their hypothetical retirements from the department as veteran police officers. The entire damage award exceeded $12 million, with $6.5 million to compensate for the recruits' future lost earnings.
According to the appellate court, the recruits' expert witness "simply assumed" that the recruits would have completed their academy training and probationary period and remained police officers for over 25 years, without any evidence that this would actually occur. The court agreed with the city that such damages were unreasonably speculative and ordered a new trial on future economic damages only. The remainder of the trial court's opinion was affirmed.
Atkins v. City of Los Angeles, Calif. Ct. App., No. B257890 (Feb. 14, 2017).
Professional Pointer: This case shows that even though an injured employee might not be a qualified individual under the nondiscrimination provisions of FEHA, he or she might still be entitled to reassignment under the statute's reasonable accommodation requirement.
Joanne Deschenaux, J.D., is a freelance writer based in Annapolis, Md.
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