Yes, an employer can defeat a failure-to-engage claim even when no accommodation would have worked, but only if its records show the process happened. A published California appellate opinion holds that an employee suing under Government Code section 12940(n) “must prove an available reasonable accommodation” (Shirvanyan). Not every court agrees, and the dispute is decided on documents. A company that can show each option it weighed, and why each one failed, has its best defense in hand.
What does FEHA require when an employee asks for an accommodation?
Two separate duties, and a lawsuit usually pleads both. FEHA (the Fair Employment and Housing Act, California’s main anti-discrimination statute) makes it unlawful “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee” under section 12940(m)(1). Section 12940(n) adds a second violation: “to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”
The interactive process is the back-and-forth between employer and employee to figure out what, if anything, will let the employee do the job. The Civil Rights Council’s regulation at 2 CCR § 11069 spells out the steps. The employer must “grant the applicant’s or employee’s requested accommodation, or reject it after due consideration, and initiate discussion with the applicant or employee regarding alternative accommodations.” Where information is unclear, the employer “shall identify the issues that need clarification, specify what further information is needed, and allow the applicant or employee a reasonable time to produce the supplemental information.” And when needed to assess a request, the employer “shall analyze the particular job involved and the essential functions of the job.”
The regulation also puts duties on the employee. Under section 11069(d), the employee “shall cooperate in good faith with the employer,” including by providing reasonable medical documentation when the disability or need isn’t obvious and the employer asks for it. I’d read that subdivision early in any of these cases, because a complaint won’t mention it.
Can an employee win a failure-to-engage claim if no accommodation was possible?
Under the published cases that have addressed the point most recently, no. In Shirvanyan v. Los Angeles Community College District (2020) 59 Cal.App.5th 82, the Second District reversed a jury verdict for the employee, ordered a new trial limited to one of her two injuries, and held that “a section 12940, subdivision (n) plaintiff must prove an available reasonable accommodation.” The court adopted the rule from Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, which it quoted: “an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” It also quoted Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952 for the point that section 12940(n) “imposes liability only if a reasonable accommodation was possible.”
The Fourth District applied the same rule in Miller v. California Department of Corrections and Rehabilitation (2024), a published opinion affirming summary judgment for the employer. The court wrote that “an employer cannot be held liable for failure to engage in the interactive process where the employee is unable to identify a reasonable accommodation that would have been available had the parties engaged in the interactive process.” It held to that even though the employee attacked the quality of the employer’s process, writing that “regardless of how deficient an employer’s participation in the interactive process may be,” an employee who can’t identify an objectively available accommodation has, in the words of Scotch that the court quoted, “suffered no remedial injury.”
There is contrary authority. The employee in Shirvanyan argued that “authority is split,” relying on Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413 and Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224. Nadaf-Rahrov described Wysinger as holding that an employee didn’t have to show an accommodation was possible, and it expressly disagreed with that reading of section 12940(n). Shirvanyan said the cases could be synthesized with its rule, while disagreeing in a footnote with Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344 to the extent that case reached a contrary conclusion. That’s a real conflict among published opinions, and a plaintiff’s lawyer will cite Wysinger. A trial judge may listen.
Why does the paperwork matter if the law already favors the employer?
Because the defense that no accommodation was available is a fact question, and the employee gets discovery to prove one existed. Shirvanyan, quoting Scotch and Nadaf-Rahrov, says the employee may identify the missing accommodation “through the litigation process.” That means the employer’s own records become the employee’s evidence.
Nadaf-Rahrov shows how this plays out. A company manager declared that the employee, a fitter on extended medical leave, couldn’t perform any open position. But the employer’s own discovery response listed available jobs through November 2004, including clerical, customer service, and sales positions, a few months past her July 2004 termination. The Court of Appeal held that the employee had raised a triable issue on whether vacant jobs she could do were available, noting that a limited extension of leave until one opened might have been a reasonable accommodation. The company’s records undercut its witness.
That’s the core of my view on these cases. A company that documented a real search for vacant positions, and why each one didn’t fit, is in a far stronger position on availability than one relying on a manager’s memory, because the employee’s lawyer will go looking for the opening the manager forgot.
On the interactive process claim itself, the Miller court said the employer could win summary judgment by showing either “that a reasonable accommodation was, in fact, offered in response to a known disability” or “that no reasonable accommodation was available even if the parties had engaged in the interactive process.” Both are proved with documents. On the failure-to-accommodate claim pleaded alongside it, Miller applied the test from Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, under which one route, as Miller quotes it, is showing the employer “did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.” Proving that breakdown takes dated letters and emails. It’s hard to prove with testimony alone.
Which records actually defeat a failure-to-engage claim?
The ones that track each duty in the regulation, in order, with dates.
| The employee’s claim | Rule it rests on | What answers it |
|---|---|---|
| The company never responded to the request | Gov. Code § 12940(n); 2 CCR § 11069(a) | A dated log showing when the request arrived and when the company first replied |
| The company rejected the request without discussing alternatives | 2 CCR § 11069(c)(1) | Notes of each meeting, the alternatives raised, and the reason each was rejected |
| The company demanded medical records it had no right to | 2 CCR § 11069(c)(2)-(4), (d)(5)(B) | The letter stating what information was missing and why, and the deadline given |
| A vacant job existed that the employee could do | 2 CCR § 11068(d) | The vacancy search for the relevant period, comparing each job’s duties with the employee’s restrictions |
| The company terminated when leave ran out | 2 CCR § 11068(c) | Records showing the company reconsidered extended leave and why more leave wouldn’t let the employee return |
| The company should have known about the condition | Gov. Code § 12940(m)(1), (n) | What the employee disclosed, to whom, and when |
Section 11068(c) says a finite leave “may be a reasonable accommodation” if it’s likely to let the employee return, but “An employer, however, is not required to provide an indefinite leave of absence as a reasonable accommodation.” The leave row matters more than most employers think: the record should show which of those the company concluded and why. In Miller, the court noted that the employer “re-engaged in the interactive process prior to the exhaustion” of the employee’s temporary disability leave benefits, and it counted that among the evidence supporting summary adjudication for the employer.
The knowledge entry is a defense of its own. In Husband v. Target Corp. (May 21, 2026, B342334), a published Second District opinion, the court affirmed summary judgment for the employer and explained that “An employer’s knowledge of an employee’s disability is a prerequisite to FEHA liability under any of those theories.” Two episodes of unusual behavior didn’t charge the employer with knowledge of an undisclosed diagnosis. Records of what the employee did and didn’t tell the company decide that issue.
A caution on storage. Section 11069(g) requires medical information from the process to be kept “in medical files separate from the employee’s personnel file.” Good documentation in the wrong file creates a different problem.
What should a company do once an interactive process claim arrives?
By then the documentation is fixed, so the job is to preserve it and read it before anyone takes a position:
- Put a litigation hold on the accommodation file, the separate medical file, every email and text about the request, the job description and any job analysis, and the vacancy postings for the whole period.
- Calendar the response deadline on the CRD complaint, right-to-sue notice (the CRD document that lets the employee file in court, and says nothing about the merits), or summons, and check for an arbitration agreement and an employment practices liability (EPLI) policy that requires prompt notice.
- List everyone who touched the request, from the supervisor to HR and the benefits administrator, and make sure nothing further happens to the employee that could look like retaliation for asking.
- Build a dated timeline from the documents themselves: each request, each response, each alternative considered, and each piece of medical information received.
- Talk to a lawyer before responding to the employee’s lawyer, before reopening the interactive process with a represented employee, and before offering anything to settle.
The firm’s California employment defense page describes how disability and accommodation claims are evaluated alongside the related discrimination and retaliation claims that usually come with them.
Interactive process questions from California employers
Is failure to engage a separate claim from failure to accommodate?
Yes. They’re separate subdivisions of section 12940, and complaints usually plead both alongside disability discrimination. The Miller court called them independent causes of action with different elements of proof. In practice they rise and fall on the same facts, chiefly whether any workable accommodation existed and how the company responded to the request. The same timeline answers both.
Do we have to give the employee the accommodation they asked for?
Not necessarily. Under 2 CCR § 11068(e), the employer must consider the employee’s preference “but has the right to select and implement an accommodation that is effective for both the employee and the employer.” What you can’t do is refuse the request and stop there. The regulation expects a discussion of alternatives, and the record should show one took place.
What if the employee stops responding during the process?
Write it down and follow up in writing. The employee’s duty to cooperate under 2 CCR § 11069(d) is real, and a breakdown caused by the employee is a recognized defense. But a single unanswered email rarely proves bad faith. A letter that names the missing information, sets a reasonable date, and says what happens next is far stronger evidence than a gap in the file.
Can we end the process if the doctor says the employee can’t work at all?
Sometimes, but be careful. In Miller, the employee and her psychologist told the employer she couldn’t return while in treatment, and the court found no available accommodation for that period. Still, a finite leave can itself be a reasonable accommodation under 2 CCR § 11068(c). Ask whether more leave would likely let the employee return before deciding it wouldn’t.
If a former employee says you never discussed accommodations
If your company has received a demand letter or CRD complaint claiming it ignored a disability accommodation request, the accommodation file and the vacancy records usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving failure to accommodate or failure to engage in the interactive process. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is Government Code section 12940, subdivisions (m) and (n). The regulations are 2 CCR § 11068 (reasonable accommodation) and 2 CCR § 11069 (interactive process). The opinions are Shirvanyan v. Los Angeles Community College District (2020) 59 Cal.App.5th 82, Miller v. California Department of Corrections and Rehabilitation (2024, E081230), and Husband v. Target Corp. (May 21, 2026, B342334), each certified for publication.
This post is general information about California and federal employment law as of November 5, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.