Legal E-Bulletin - July 2000

Reasonableness, Accommodations, and Reasonable 
Accommodations under the ADA

    Continued . . . 

    Last month's e-bulletin addressed the general nature of the employer's duty to provide reasonable accommodation and when that duty arises.  This month, the focus shifts to how an employer properly discharges his duty to reasonably accommodate an employee with a disability.

V. The Interactive Process of Identifying an Available Reasonable Accommodation. 

The employer's duty to provide a reasonable accommodation arises when the employee effectively requests one.  Once the duty arises what does the employer need to do to meet the duty imposed by law? First, the employer should not immediately respond to the request with a denial of the accommodation.  The implementing regulations envision that the employer will engage in a dialogue with the employee for the purpose of determining what accommodations would be effective, which accommodations the employer is able to provide and which accommodations might be preferred by the employee.  The regulations provide that: 

To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. § 1630.2(o)(3).

A. Interactive Process Is NOT Mandated by the ADA. 

The expectation of an employer-employee dialogue is not mentioned in the text of the statute, and the regulations merely indicate that such a dialogue may be necessary.  Nothing in the statute or the regulations require the employer to engage in the interactive process envisioned by the regulations.  The failure to engage in the interactive process by itself does not give rise to any liability by the employer. See e.g., Fjellestad v. Pizza Hut, 188 F.3d 944 (8th Cir. 1999)(holding that the employer is not per se liable for failure to engage in the interactive process); Cannice v. Norwest Bank Iowa, 189 F.3d 723 (8th Cir. 1999)(no per se liability for failure to engage in the interactive process). 

B. The Practical Consequences of Not Engaging in the Interactive Process. 

The substance of the dialogue has a practical importance and the courts often look to the substance of the dialogue to determine the reasonableness of the employer's efforts.  The conduct of the employer is an important fact issue because the duty to reasonably accommodate a disabled worker who has requested an accommodation requires the employer to make a good faith effort to accommodate.  The actions and attitude of the employer after the request for accommodation is made are evident of the employer's good faith, or lack of it. Because the employer's good faith efforts and its intent are material issues of fact in reasonable accommodation cases, the employer's actions after the request for accommodation will be evidence at trial or (more likely) on a motion for summary judgment.

The employer who fails to engage in the interactive process should expect that evidence of the failure will be offered by the plaintiff on a motion for summary judgment or at trial.  The plaintiff will offer the evidence to show that the employer intentionally refused to make a good faith effort to accommodate and therefore was engaged in intentional discrimination.  On the contrary, if the employer engaged in an interactive process and documented its activities, the employer can then move for summary judgment with substantial evidence that shows the action undertaken and the reasons that it did or did not accommodate the employee. 

1. Failure to Engage in Dialogue May Preclude Summary Judgment for the Defendant or Permit Summary Judgment for the Plaintiff.

a. Failure to Discuss Options Is Evidence of Lack of Good Faith and the Intent to Discriminate.

In Fjellestad v. Pizza Hut, the employer did not fully discuss with the employee the accommodations that were possible, at least not in an interactive way anticipated by the regulations.  The employer did not consider reassignment because the employee had generally expressed a desire to retain her current position.  The court concluded that where the employer failed to engage in the interactive process, summary judgment is generally inappropriate because there is an inference that the employer did not act in good faith and intended to deprive the employee of the right to a reasonable accommodation. 

The court noted that Fjellestad might have changed her mind about reassignment to a lower position if Pizza Hut had engaged in the interactive process and informed her that reassignment to a lower position might be the only possible form of reasonable accommodation available.  Furthermore, the court in Fjellestad also held that an employer cannot escape its duty to engage in the interactive process because the individual did not request a specific type of reasonable accommodation, or an accommodation that would be the type might be ordered by the court should the plaintiff prevail in litigation.  The point of an interactive process is for the parties to share information and explore what options exist for reasonable accommodation and any problems providing specific accommodations.

b. Actions of Employer Instead of Interactive Process Is Evidence of Bad Faith and Intent to Discriminate. 

In Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999) found that a school district's failure to engage in the interactive process in good faith constituted a failure to provide a reasonable accommodation. The absence of good faith was sufficient evidence to show the employer's intentional denial of a reasonable accommodation.  The employer had moved for summary judgment on the grounds that the employee was not a qualified individual with a disability, among other grounds. The court found a genuine issue of material facts as to whether the school district acted in good faith in the interactive process.  Evidence of the employer's failure to interactively consider the available options was sufficient to raise a genuine issue of material fact that precluded the summary judgment in favor of the defendant. 

In addition to considering the employer's failure to engage in the interactive process, the court in Taylor also looked at what the employer did instead of engaging in the interactive process.  The evidence showed that instead of looking for ways to accommodate the employee, the employer began to closely scrutinize the plaintiff's job performance and began documenting her every error immediately after she returned from medical leave. This evidence was indicia of bad faith along with the refusal to engage in a constructive dialogue.  Evidence of the heightened scrutiny, the absence of any accommodation, and the refusal to engage in a the interactive process was sufficient to show a genuine issue of material fact for trial, which precluded the court from granting the employer's motion for summary judgment. 

In Taylor, the availability of a number of readily apparent and modest accommodations was further evidence that the employer acted in bad faith and showed the lack of credibility in the employer's contention that accommodation was not possible.  The court held that the "modest and fairly obvious" reasonable accommodations available included: (1) increasing her responsibilities more slowly when she returned from medical leave, (2) giving her more time to learn to use the computer, and (3) engaging in more interactive communication about work problems rather than giving her formal, written reprimands.  All of this evidence combined to defeat the employer's motion for summary judgment.

c. The Employer Cannot Place the Entire Burden on the Plaintiff.

In Taylor and Fjellestad, the employers' refusal to engage in the interactive process was persuasive evidence that the employers' were intentionally denying the disabled individual of a reasonable accommodation.  What if the employer engages in a dialogue, but places the entire burden of identifying available accommodations and demonstrating their feasibility on the plaintiff.  The interactive process requires dialogue and the exchange of information.  Therefore, an employer whose only contribution to the dialogue is saying "no" or "prove it" is not engaging in a good faith dialogue envisioned in the interactive process. 

In Chen v. Galen Hospital Illinois, 10 AD Cas. (BNA) 346 (N.D. Ill. 2000), the court found that the employer had not adequately demonstrated that it engaged in an interactive process because it did not participate in determining if a reasonable accommodation could be provided.  Rather, the evidence suggested that the employer had placed the full burden of determining an appropriate accommodation on the plaintiff. The court considered this to be contrary to the requirements of the ADA.  The employer provided some evidence showing why assisting the disabled employee might not be feasible.  However, this evidence was not sufficient to show the employer was engaged in a meaningful interaction calculated to arrive at an effective accommodation. Rather, other evidence suggested that the employer had already decided not to accommodate the employee. Most importantly, there was no evidence that the employer attempted to ascertain whether any of the requested accommodations were possible - in this case determining if vacant positions existed for reassignment.  Because the ADA requires the active involvement of an employer in identifying such jobs, the court found that the employer failed in its duty by contending that it was prepared to make a reassignment only if Chen identified an appropriate job and that it was the employee's responsibility to do so.

d. Avoid Punitive Damages with the Interactive Process.

Engaging in the interactive process has many practical advantages.  The foremost is the opportunity to provide an effective accommodation that is necessary to retain a qualified worker.  Of course, if the employer is unable to accommodate the employee, the employer has the advantage of being able to demonstrate its good faith efforts and increase the likelihood of avoiding trial by prevailing on a motion for summary judgment. 

Even if the evidence is such that an employer cannot avoid trial even after engaging in the interactive process, there is still another advantage in having engaged in the interactive process.  If an employer does have to defend its decisions in court, evidence that the employer engaged in the interactive process can reduce its exposure to damages.  The Civil Rights Act of 1991 amended the ADA to permit the recovery of compensatory damages and punitive damages, among other changes in the law.  However, the Congress included a savings clause in the punitive damage provision. 

The Civil Rights Act of 1991 provides that 

In cases where a discriminatory practice involves the provision of a reasonable accommodation pursuant to section 102(b)(5) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112(b)(5))  . . . damages may not be awarded under this section where the covered entity demonstrates good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business. 42 U.S.C. § 1981a(a)(3).

Section 1981a(a)(3) shows that employer has a real financial incentive to engage in the interactive process in good faith, even though there may be no affirmative requirement in law to do so.  Section 1981a permits a defendant to escape liability for punitive damages if he can "demonstrate" a good faith effort to accommodate.  An employer can most easily demonstrate a good faith effort, and thereby avoid punitive damages, simply by documenting the efforts it made to accommodate the disabled employee.  The more clearly the records reflect the employer did all that was reasonably necessary to accommodate the disabled employee, the more easily the employer will be able to avoid punitive damages.  Section 1981a specifically directs the judge and judge to consider:

(1) whether the employer's actions demonstrate good faith;
(2) whether the employer consulted with the person with the disability who needed the accommodation;
(3) whether the employer identified an effective accommodation;
(4) whether the employer made any accommodation;
(5) whether the accommodation was effective to provide the individual with an equal employment opportunity; and
(6) whether such an accommodation would cause an undue hardship on the operation of the business.

VI.  What are the Hallmarks of an Adequate Interactive Dialogue with the Plaintiff.

Determining the appropriate accommodation will depend on the unique circumstances of the disabled employee, the job duties, and the employer's ability to provide an accommodation.  Therefore, the process of determining the accommodation is the single uniform aspect among reasonable accommodations. 

 The first step in the process is to analyze the job and determine its purpose and functions.  The reason that the employer and the employee should start here is that identifying the precise job functions begins to narrow the scope of inquiry toward reasonable and effective accommodations.  Marginal functions can be eliminated, reassigned or even accommodated if the employer chooses to do so.  Defining the employee's responsibilities is essential to identifying which functions may need to be accommodated.  The first step focuses the attention on the functions required in the persons job.

Second, the employer should consult with the disabled individual to understand which of the job functions the employee may need an accommodation.  This step narrows the focus still further to look specifically to the job functions in which the employee is experiencing a limitation because of the disability.  This consultation with the employee is also an opportunity for the employee to offer information or for the employer to inquire about how the limitations that are identified might be overcome with an accommodation. The employer may seek the opinions of third parties to assess what accommodation are possible.  The goal of this step is identify the range of possible accommodations. 

The third step is to narrow the range of possible accommodations by excluding from consideration those accommodations that are not effective to enable the employee to perform the job.  The range of options can also be narrowed by eliminating those accommodations that are cost prohibitive or impractical for other reasons.  By narrowing the range of possible accommodations, the parties are left with a subset of the possible accommodations that represent those that are effective and affordable. 

Finally, by following this procedure, the employer and the employee will have before them a range of possible accommodations that are effective and affordable by the employer.  At this point the employer will illicit any preferences from the employee and make a decision that best suits the needs of the employer, the employee, and the demands of the job. 

It may be that at this point there are no reasonable accommodations that are available. Following the procedure is no guarantee that it necessarily leads the parties to reasonable accommodation.  It may well demonstrate the lack of a reasonable accommodation for the particular circumstances.  The absence of an accommodation may be a disappointment, but systematically considering the options in consultation with the employee reduces the likelihood of litigation and reduces the risk at trial for the employer should there be litigation.  Also, if the interactive process identifies an accommodation that the employee believes to be warranted, but the employer nevertheless denies, then the employee has the advantage of being able to allege a specific accommodation that was known to be available, but was denied.

An employee who has been given a fair opportunity to explore with the employer all possible options is more likely to accept the denial of a reasonable accommodation if the employee can see for himself that the range of options and the employer's ability to provide the accommodation.  Even if the employee is not satisfied with the decision of the employer and initiates a proceeding against the employer, the employer will have the advantage of being able to demonstrate its good faith efforts and realize all the evidentiary benefits from having done so. 

These steps discussed in the EEOC interpretive guidance which appears in the regulations and endorsed by the courts that have addressed the question of whether the employer adequately considered available reasonable accommodations. See e.g., Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999)(holding that employers can show good faith participation in the interactive process by (1) meeting with the employee, (2) requesting information about the employee's condition and what limitations are caused by the condition, (3) asking the employee what she wants as an accommodation, (4) showing some sign of having considered the employee's request, and (5) offering and discussing alternative forms of reasonable accommodation when the employee's suggestion is too burdensome).

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