Most disability cases that fail at summary judgment do not fail on the disability. They fail because the plaintiff's counsel treated the interactive process as a subplot of the accommodation claim instead of what the statute makes it: a standalone obligation with its own cause of action, its own burden allocation, and its own evidentiary demands. Government Code section 12940(n) makes an employer's failure to engage in a good-faith, timely interactive process independently unlawful — distinct from the section 12940(m) duty to provide reasonable accommodation. A defendant can accommodate an employee poorly and still lose the process claim, or refuse accommodation lawfully and still be exposed for how it handled the conversation.
California appellate courts have spent the last two decades filling in what "good faith" and "timely" mean in practice, and the recent decisions have not softened the employer's duty so much as clarified where the plaintiff has to build a record. For working plaintiff counsel, the question in 2026 is not whether the process claim exists — it plainly does — but what facts a court needs to see before it will let a jury decide whether the employer stalled, went silent, or ran the meeting as a formality.
Two Duties, Not One
The structural point that decides most motions is that section 12940(m) and section 12940(n) are separate. Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413 confirmed that an employee may recover for a failure to engage in the interactive process even where the accommodation claim is contested, because the duty to communicate in good faith attaches once the employer knows of the disability and the need for accommodation. That knowledge does not require magic words. An employer on notice of a limitation — through a doctor's note, a leave request, a visible impairment, or a supervisor's own observation — has a duty to open the dialogue, and it cannot wait for the employee to name a specific accommodation first.
This is where defense counsel most often overreaches at summary judgment. They argue the plaintiff never requested a particular accommodation, so no duty arose. The statute and the case law do not support that framing. The obligation is a two-way exchange; the employer that receives notice of a disability and does nothing has breached the process duty regardless of whether the employee produced a tidy written request. The practical lesson is to plead and prove the moment of notice with specificity — the date, the document, the person who received it — because that moment starts the clock the defense will try to erase.
Who Carries the Burden, and When
The burden allocation is counterintuitive and worth getting exactly right. On the accommodation claim, Nadaf-Rahrov v. Neiman Marcus Group (2008) 166 Cal.App.4th 952 held that the employer bears the burden of proving that no reasonable accommodation was available — including the burden on whether reassignment to a vacant position was possible. That is a defense burden, and it is a heavy one, because it requires the employer to account for positions across the organization, not just the plaintiff's own department.
The process claim shifts the emphasis. Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986 held that to prevail on a failure-to-engage theory at trial, the employee must identify a reasonable accommodation that would have been available had the process been conducted properly. That is not a pleading requirement and it is not a summary-judgment trap in the abstract — it is a proof requirement the plaintiff can meet with discovery. It means counsel should be building, through interrogatories and depositions, the list of open positions, light-duty options, schedule modifications, and leave extensions the employer failed to raise. The process claim is not free-floating; a jury has to be able to point to something the broken dialogue cost the plaintiff.
Reassignment and the Vacant-Position Problem
Reassignment to a vacant position remains the accommodation employers most consistently mishandle, and the case law rewards plaintiffs who develop it. Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954 reinforced that an employer's duty extends to considering vacant positions the employee is qualified for, and that a limited, department-only search does not satisfy the obligation. The employer does not have to create a job or bump another worker, but it does have to look honestly across what it actually had open during the relevant window.
Discovery here should be aggressive and dated. Pull the requisition records, the internal job postings, and the hiring approvals for the period between notice and termination. Employers frequently posted and filled positions the plaintiff could have performed while telling the plaintiff no options existed. That contradiction is often the strongest evidence of bad faith on the process claim, because it shows the dialogue was not a search but a formality run to paper the file.
The Limits: Indefinite Leave and Total Incapacity
Plaintiff counsel does the client no favors by ignoring the ceilings the appellate courts have set. A finite leave of definite duration can be a reasonable accommodation; an open-ended request with no expected return date generally is not, because the accommodation must enable the employee to perform the essential functions of a job, not excuse performance indefinitely. More recently, Lin v. Kaiser Foundation Hospitals (2023) 88 Cal.App.5th 712 addressed the employee whose own evidence showed a total inability to work in any capacity; where the plaintiff cannot perform the essential functions of any available position even with accommodation, the accommodation and process claims both fail, because there is no accommodation the process could have produced.
The takeaway is to police your own client's medical record before the defense does. If the treating physician's certification says the client cannot work at all, that document will sink the case unless it is qualified, updated, or explained. The strongest process cases involve a client who could have worked with a specific, identifiable adjustment — and an employer that never seriously discussed it.
What "Good Faith" Looks Like on the Record
Good faith is a fact question, which is why these claims survive summary judgment more often than defendants expect. The markers a jury responds to are concrete: unreturned calls, a single perfunctory meeting with no follow-up, demands for medical detail beyond what the limitation required, delays measured in months, and decision-makers who admit in deposition they never looked at any position outside the plaintiff's title. Conversely, an employer who documented multiple contacts, offered trial arrangements, and extended leave in good faith will usually get the process claim resolved in its favor — which is precisely why the timeline evidence matters more than the rhetoric.
Build the case as a chronology. Every gap in the employer's communication is a fact the jury can weigh; every unanswered request is a breach it can find. The same record-discipline that wins these cases carries into related employment postures, whether you are pricing out a claim under the settlement-drafting constraints discussed in our review of sexual harassment settlement architecture after AB 749 and SB 331, or weighing the economics before you file, as in our breakdown of solo wage-and-hour claims and when the math works.
Where the Overlap With PI Practice Lives
For a PI practice that touches employment, the interactive-process claim frequently rides alongside an industrial injury. A client hurt on the job may have a workers' compensation claim, a third-party recovery, and a FEHA accommodation claim arising from the same event, and the interplay affects lien exposure and net recovery. Counsel handling the third-party side should understand how the comp carrier's interest attaches, a subject we cover in detail in workers' comp liens in third-party PI practice. The disability claim is often where the real value sits, because the process breach — the employer that fired rather than accommodated a recovering worker — carries emotional-distress and punitive exposure the comp system cannot reach.
Treat the FEHA claim as its own matter with its own proof plan rather than a rider on the injury case. The notice date, the vacant-position discovery, and the medical certification are the three pillars, and each has to be developed on its own schedule.
The Closing Observation
The doctrine has been stable long enough that the outcomes now turn on record-building, not on unsettled law. The process claim is separate, the employer's search duty is broad, and the plaintiff has to identify what the failed dialogue cost. Cases are lost when counsel treats the interactive process as a box the employer checked and won when counsel proves it was a conversation the employer refused to have.