Jessica Leigh Rosenthal, the Interactive Process Disabled: Improving the Ada and Strengthening the Eeoc Through the Adoption of the Interactive Process

• Citation: Vol. 57 No. 1
• Publication year: 2007

COMMENTS

THE INTERACTIVE PROCESS DISABLED: IMPROVING THE ADA AND STRENGTHENING THE EEOC THROUGH THE ADOPTION OF THE INTERACTIVE PROCESS†

INTRODUCTION

For the over ten percent of Americans with a disability,¹the Americans with Disabilities Act of 1990 (ADA) promised "far-reaching reforms"²to aid in overcoming the challenges encountered in daily life, including the workplace.³Over fifteen years later, the ADA, as currently applied, falls short of fulfilling that promise.⁴The ADA requires employers to make adjustments or modifications, called reasonable accommodations, for disabled but otherwise qualified individuals.⁵The Equal Employment Opportunity Commission's (EEOC) ADA regulations lay out a flexible and practical framework, called the "interactive process," to aid employers in determining reasonable accommodations.⁶

The interactive process purports to provide a means by which both the employer and the disabled individual can work together to determine the best reasonable accommodation for the individual.⁷Unfortunately, a combination of unclear drafting by Congress, lackluster implementation of the statute by a less-than-ambitious agency (the EEOC), and a split among the federal courts regarding the mandatory nature of the interactive process has severely limited the use of the interactive process as a vehicle to help attain the ADA's goals.⁸

But the full potential of the ADA can be achieved. This Comment utilizes theories of flexible regulation, particularly a form of New Governance theory called "Experimentalism," to explain not only why the interactive process should be mandatory, but also to suggest how the outcomes of these interactive processes can, through the establishment of a Reasonable Accommodation Database,⁹operate as a toolkit of information to help aid future employers and employees, as well as the EEOC and the courts.

The ADA has certainly made improvements for many in America's disabled population; however, the ambiguous language of the statute has led to a great deal of confusion and litigation concerning its proper application.¹⁰

The ADA's goal of providing a "clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" and to address "major areas of discrimination faced day-to-day"¹¹by those with disabilities is diminished by confusion in the courts and among the public concerning the meaning of the statute and its application. Such confusion stems from the ADA's textual ambiguities and subsequent poorly drafted regulations by the EEOC. As a result, employers struggle to understand how to what the ADA requires of them; similarly, disabled individuals find it difficult to articulate what accommodations they need in order to participate in the workforce.

The ADA's application raises many questions. This Comment leaves the issues of the scope and coverage of the ADA to other scholars.¹²This

Comment instead focuses on the interactive process and how to bolster its effect through the EEOC monitoring and maintenance of a Reasonable Accommodation Database.¹³

While other scholars have written about why the interactive process should be adopted, this Comment takes this assertion one step further. This Comment proposes that the EEOC strengthen itself and help advance the promise of the ADA by monitoring the outcomes of the interactive processes and maintaining a database. Further, this Comment fills in gaps in the literature by suggesting a flexible approach to issues concerning the current regulatory framework of reasonable accommodations under the ADA.¹⁴

This Comment grapples with the confusion caused by the ADA's ambiguous language, the Supreme Court's interpretation of the ADA, and the Equal Employment Opportunity Commission's regulations.¹⁵The present regulatory scheme has produced confusion not only for disabled individuals and employers, but also among the federal circuit courts.¹⁶Currently, the circuit courts are split on how to best deal with the issue of the interactive process.¹⁷

Such confusion thwarts the ADA's ability to maximize its effect on disabled individual's rights in the workplace. The uncertainty also makes it difficult for courts to settle on which accommodations are reasonable and which are not.¹⁸Applying theories of "New Governance," which advocate the flexible regulations that encourage learning through monitoring and information sharing, to the EEOC's ADA regulations would help diffuse the confusion. In this context, New Governance, would counsel the wholesale adoption of the interactive process, while also weighing in favor of bolstering the resources provided to parties engaged in the interactive process.¹⁹By laying out the current status of reasonable accommodations, as well as advocating the mandatory application of the interactive process, this Comment applies theories of New Governance to the duty to provide reasonable accommodations.

Although this Comment urges the adoption of a rigid rule that requires parties to engage in the interactive process, it also offers a flexible solution for obtaining reasonable accommodations. Through this mixture of mandatory requirements and flexible solutions, the EEOC will be better equipped to assist parties engaged in the interactive process, ultimately strengthening the EEOC as a regulatory agency. For an agency often criticized as weak and ineffective, this proposal presents an opportunity to improve its effectiveness as well as its public image. Further, by eliminating confusion concerning the requirement to engage in the interactive process and increasing access to information about possible accommodations, this framework will encourage better, more appropriate accommodations for disabled workers. Ultimately, this new approach has the potential to provide greater benefits for disabled individuals and employers at both the workplace and regulatory level.

Part I of this Comment provides an overview of the ADA. Part II addresses the Equal Employment Opportunity Commission's regulations concerning the ADA. Specifically, that Part considers regulations related to the use of the interactive process. Part III explores issues of deference and the current confusion surrounding the mandatory nature of the interactive process. Part IV discusses why the interactive process benefits employers, employees, and society. Lastly, Part V introduces the body of scholarship concerning regulations called New Governance and, through the lens of flexible regulatory schemes, argues in favor of similar applications to EEOC regulations.

Specifically, Part V proposes the establishment of a Reasonable

Accommodation Database.

I. THE AMERICANS WITH DISABILITIES ACT OF 1990

In 1990, Congress passed the Americans with Disabilities Act.²⁰Cognizant of historical and ongoing isolation, segregation, and discrimination against individuals with disabilities,²¹Congress clearly sought to establish that discrimination against the disabled is unacceptable.²²The ADA is divided into five titles.²³This Comment focuses on Title I, which prohibits discrimination in the employment context.²⁴This Part lays out the definition of "disability" under the ADA and the general concept of reasonable accommodations.

A. Who is "Disabled" Under the ADA?

Not all disabled individuals are protected under Title I of the ADA.²⁵

Rather, protection under Title I is limited to "qualified individual[s] with a disability."²⁶A "qualified individual with a disability" is an individual who,

"with or without reasonable accommodation, can perform the essential functions of the employment position that such an individual holds or desires."²⁷Congress defined the term "disability" to cover individuals who either had a record of,²⁸or were regarded as having,²⁹a "physical or mental impairment that substantially limits one or more of the major life activities of such individual."³⁰Thus, in order for an individual to establish that he is a "qualified individual with a disability," he must satisfy two elements: (1) that he is "disabled" under the ADA's definition of disability; and (2) that he is "otherwise qualified" to perform the job with or without reasonable accommodation.³¹

B. What is a Reasonable Accommodation?

Assuming that an individual establishes that he is disabled under the ADA, the individual also must prove that he is otherwise qualified to perform the essential functions of the job that he currently holds or seeks to hold.³²

However, the qualification requirement is tempered by the phrase "with or without reasonable accommodation."³³An employer's failure to make reasonable accommodations for an otherwise qualified disabled employee is a form of discrimination under the ADA.³⁴

The ADA's text does not define "reasonable accommodation" directly, but instead provides possible examples of such accommodations.³⁵Employers may get around their obligation to provide reasonable accommodations by establishing that the accommodation at issue would be unduly burdensome for the employer to implement.³⁶The inquiry into whether an accommodation imposes an "undue hardship"³⁷requires consideration of a wide range of factors, including the nature and cost of the accommodation, the size and resources of the employer, the effect on expenses and resources, and other effects of accommodation on the employer.³⁸

In drafting and enacting the ambiguously worded ADA, "Congress recognized that its implementation would require administrative agencies to flesh out its terms."³⁹Given the ADA's failure to specifically define the term "reasonable accommodation," the task has fallen primarily⁴⁰on the Equal

Opportunity Employment Commission⁴¹to provide guidance on the issue of reasonable accommodations for individuals with disabilities in the workplace.⁴²

II. THE EEOC AND THE ADA

Title I of the ADA grants the EEOC the authority to implement and make regulations.⁴³Pursuant to this authority, the EEOC has issued regulations that define reasonable accommodation as (1)...