The Interactive Process Dance: What Happens When the Music Stops?

By Patricia Perez, Lara de Leon, and Kelly Bolar

Patti Perez, President and Founder of Puente Consulting and a Commissioner with the Fair Employment and Housing Council, focuses her practice on conflict resolution (conducting neutral investigations and performing pre- and post-litigation mediations) and presenting trainings nationwide. Lara de Leon is a shareholder in the Orange County office of Ogletree Deakins. She represents employers in all aspects of labor and employment law, including employment litigation and counseling. Ms. de Leon is a frequent speaker on disability law and is also a member of Ogletree Deakins’ Disability Access Practice Group. Kelley Bolar is an associate in the Orange County office of Ogletree Deakins, where she represents and counsels employers in a variety of labor and employment matters, including the California Fair Employment and Housing Act, Title VII, the Family and Medical Leave Act, and federal and California wage and hour issues.

Introduction

California employers are not only required to refrain from discriminating against any employee on the basis of disability, but they also have an obligation to provide "reasonable accommodations" for employees with disabilities.¹ Additionally, the California Fair Employment and Housing Act (FEHA) provides that to determine whether there is an effective and reasonable accommodation that can be implemented, employers and employees must participate in a mutual, good-faith interactive process.² While this sounds like a relatively simple obligation, it has become a topic that often confuses employers and employees alike. In litigation, the issue of the interactive process has become one of the most important aspects for litigants, counsel and judges. A prior article in the Law Review examined the steps of the interactive process "tango."³ This article explores what happens when, for whatever reason, the process comes to an end.