Chapter § 3-9 § 1630.9. Not Making Reasonable Accommodation

• Jurisdiction: United States

3-9 § 1630.9. Not Making Reasonable Accommodation

(a) It is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.

(b) It is unlawful for a covered entity to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such covered entity to make reasonable accommodation to such individual's physical or mental impairments.

(c) A covered entity shall not be excused from the requirements of this part because of any failure to receive technical assistance authorized by section 507 of the ADA, including any failure in the development or dissemination of any technical assistance manual authorized by that Act.

(d) An individual with a disability is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified.

(e) A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the "actual disability" prong (§ 1630.2(g)(1)(i)), or "record of" prong (§ 1630.2(g)(1)(ii)), but is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the "regarded as" prong (§ 1630.2(g)(1)(iii)).

3-9:1 Commentary

The heart of the law is the provision requiring that an employer engage in the process of determining whether there is a reasonable accommodation to the employee's disability. Once an employee clears the foregoing threshold to coverage (employee has disability and qualified as individual with a disability), the issue of reasonable accommodation must be addressed.

3-9:1.1 What Does Reasonable Accommodation Require?

A legal issue that may be a game changer on reasonable accommodation is the answer to this question: is an employer obligated to only provide an accommodation designed to help an employee perform the essential functions of the job, or must an employer do more and provide an accommodation, in the words of the regulations, that allows employees with a disability to enjoy "equal benefits and privileges of employment as are enjoyed . . . by other similarly situated employees without disabilities?" The following case adopts the second view.

• EEOC v. Life Techs. Corp., No. WMN-09-2569, 2010 WL 4449365 (D. Md. Nov. 4, 2010) (defendant employed a profoundly deaf employee; his job required him to attend numerous meetings for which defendant sometimes hired an interpreter, and other times did not; on those occasions when defendant did not provide an interpreter, it provided written materials or one-on-one time with a supervisor; court denies summary judgment to the employer, adopting expansive view of the regulations and rejects employer's argument that providing full-time interpreter was an undue burden because the cost would be prohibitive; it would be up to a jury to determine if that was the case, especially in light of the fact that, in seeking to accommodate the employee, the employer only contacted one translation service, and the EEOC identified a less expensive alternative, namely a video translation service).

On September 16, 2013, the Fifth Circuit in Life Technologies adopted the reasoning of Feist. In Feist, the Fifth Circuit rejected the argument that reasonable accommodations need only be offered to enable an employee to perform the essential functions of the job. There, an employee injured her knee. She requested a parking space closer to the elevators that she took to work. While the accommodation for her knee issue did not involve helping her perform her job, it was nevertheless an ADA violation not to discuss an accommodation with her for her needs.

In 2018, the Fifth Circuit adhered to this precedent.

• Stokes v. Nielsen, No. 17-11083, 2018 U.S. App. LEXIS 28204 (5th Cir. Oct. 4, 2018).

In 2020, a district court in the Southern District of Texas adhered to the reasoning of these cases.

• Iqbal v. City of Pasadena, 4:19-CV-03608 (S.D. Tex. Jan. 24, 2020) (court denied summary judgment on failure to accommodate where plaintiff, who experienced cognitive and social limitations, asked for but was denied representative in disciplinary process; court held that plaintiff arguably needed such a representative to even the playing field with non-disabled employees).

Increasingly, courts are starting to understand that the duty of accommodation is much more expansive than plaintiff's lawyers—to the detriment of their clients—have been framing it. Here are two cases.

• Gleed v. AT&T Mobility Servs., LLC, 613 F. App'x 535 (6th Cir. 2015) (summary judgment for employer reversed when plaintiff asked to sit on a stool at work to alleviate pain in his leg caused by a medical condition; trial court reasoned that plaintiff testified that he could perform job, albeit in pain, and thus no need for a reasonable accommodation; appeals court reverses and holds: "[T] he ADA's implementing regulations require employers to provide reasonable accommodations not only to enable an employee to 'enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without disabilities.'").

In other words, if an employee has a physical impairment that substantially limits a major life function, the employee is entitled to discuss a reasonable accommodation with the employer for matters dealing with his job, as well as matters not dealing with his job. Thus, an employee, even if he can do his job by working through the pain to perform his job, is entitled to a reasonable accommodation to manage the pain. So held the D.C. Circuit.

• Hill v. Assocs. for Renewal in Educ., Inc., No. 12-0823 (JDB), 2014 WL 12538946 (D.D.C. 2018) (reversing summary judgment in case in which plaintiff had one leg and had to stand for long periods of time; he asked for a classroom aide to help him so that he would not need to stand for long periods of time; when he did so stand, his stump leg caused him pain and bruising; district court granted summary judgment to the employer, but the judgment was reversed with the appeals court holding: "[The employer's assertion] that [plaintiff] did not need the accommodation of a classroom aide because he could perform the essential functions of his job without accommodation, but not without pain . . . is unavailing. A reasonable jury could conclude that forcing [plaintiff] to work with pain when that pain could be alleviated by his requested accommodation violates the ADA.").

Regardless of such adoption, the ADA requires now, at a minimum, that an employer provide more than neutral treatment to all employees. So, reasonable accommodation requires that an effort be made by an employer to provide an accommodation allowing an employee to perform the essential functions of the job. It does not require an employer to:

(a) Delete what it considers essential functions, or
(b) To change its standards; (employer can require administrative assistant to type eighty words a minute.)

The Fifth Circuit picked up the thread of Feist in a 2017 case involving an employee stricken with cancer, noting that the employer did not provide the plaintiff with the same opportunities as non-disabled employees. This is a fertile area for plaintiff's attorneys to expand upon.

• Caldwell v. KHOU-TV, 850 F. 3d 237 (5th Cir. 2017) (Fifth Circuit condemns paternalistic attitude toward employee with bone cancer that damages his leg and make it difficult for him to move around at work without crutches; as a result, plaintiff was not scheduled to work at certain job tasks that were performed in a room with "tight spots" to move around in and testified that "they didn't want to put him in any health jeopardy because of all of that"; and yet employer claimed that plaintiff was terminated because of his inability to perform this particular job task; moreover, other employees were warned when their performance was deficient but not the plaintiff).

An important point on reasonable accommodation was recently made by a Texas trial court in the Northern District. A plaintiff can lose on summary judgment on a straight up ADA discrimination case but win on the claim that the employer failed to reasonable accommodate.

• EEOC v. Accentcare Inc., No. 3:15-CV-3157-D, 2017 U.S. Dist. LEXIS 95922 (N.D. Tex. June 14, 2017) (summary judgment granted to employer on ADA discrimination claim; court notes that the employee was terminated for excessive absences and that no reasonable jury could find that reason to be pretextual; yet summary judgment was denied to employer on the failure to reasonably accommodate claim; employee suffered from bipolar disorder, a clear disability and asked for an accommodation to help her so that she was not absent or tardy; employer said no and terminated her for absences; the court relied upon a First Circuit case, Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999), which held that "(any) failure to provide reasonable accommodations for a disability is necessarily "because of the disability"—the accommodations are only deemed reasonable (and, thus, required) if they are needed because of the disability—and no proof of a particularized discriminatory animus is exigible. Hence, an employer who knows of a disability yet fails to make reasonable accommodation violates the statute, no matter what its

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