May v. Honeywell International Inc., No. 07-35480 (9th Cir. Dec. 10, 2008)

| Dec 10, 2008 | Daily Developments in EEO Law |

As occasionally noted here, state law statutory protections for employees can be more expansive than federal law. Here’s a nice instance from the Ninth Circuit, an unpublished decision applying Washington state law to a disability reasonable accommodations case.

May v. Honeywell Int’l Inc., No. 07-35480 (9th Cir. Dec. 10, 2008) with concurrence and dissent:  Here’s the entire analysis —

“To prove failure to accommodate, a claimant must be qualified to perform the essential functions of her job, which Honeywell argues that May herself stated she was unable to do. See Hill v. BCTI Income Fund-I, 23 P.3d 440, 452-53 (Wash. 2001). For example, Honeywell cites a February 7, 2005 letter from May that reads, “There is absolutely no way that I am able to work and deal with the extreme pain that I am dealing with on a daily basis.” The letter, however, subsequently discusses her ongoing treatment, including acupuncture and consulting with a back surgeon. It is a reasonable interpretation of the correspondence between May and Honeywell that although she was incapable of working at that time, she was investigating future treatment options in the hopes of coming back to work. In such a case, a leave of absence to seek treatment in order to allow return to work would be an accommodation of disability. See Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 878-79 (9th Cir. 1989). We therefore reverse summary judgment as to May’s failure to accommodate discrimination claim, because there is a genuine issue of material fact as to whether Honeywell failed to accommodate her disability by granting her a leave of absence with attendant STD benefits.”

I read in this opinion a more flexible approach to the “otherwise qualified” condition than federal courts ordinarily allow under the ADA.  As the dissent noted —

“Nor do I believe May raised a triable issue on reasonable accommodation. Honeywell offered accommodation that May turned down. May’s February 7, 2005 letter does not raise a reasonable inference that she could be accommodated. Her deposition testimony from October 11, 2006 confirms that she was not able to work in any job in 2005. The issue of reasonable accommodation has to be resolved at some moment in time, and there is no genuine issue of material fact as to whether May could have been accommodated in 2005.”


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