The Ada Interactive Process: the Employer and Employee's Duty to Work Together to Identify a Reasonable Accommodation Is More Than a Game of Five Card Stud

• Publication year: 2021

77 Nebraska L. Rev. 281. The ADA Interactive Process: The Employer and Employee's Duty to Work Together to Identify a Reasonable Accommodation Is More Than a Game of Five Card Stud

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Sam Silverman*

The ADA Interactive Process: The Employer and Employee's Duty to Work Together to Identify a Reasonable Accommodation Is More Than a Game of Five Card Stud

TABLE OF CONTENTS

I. Introduction .......................................... 281
II. ADA Basics ............................................ 282
III. Reasonable Accommodation .............................. 283
IV. The Interactive Process ............................... 286
V. The Interactive Process and Employer Defenses ......... 295
VI. Case Study ............................................ 297
VII. Recommendations and Conclusions ....................... 298

I. INTRODUCTION

Since The Americans with Disabilities Act of 1990 (ADA)(fn1) took effect, employers have struggled when trying to apply the act to real employment situations. Originally, federal protection against handicap discrimination was established in the Rehabilitation Act of 1973, (fn2) which prohibits discrimination on the basis of handicap with regard to any program or activity receiving federal assistance.(fn3) Precedent arising from cases decided under the Rehabilitation Act have served as guidance for ADA determinations. As ADA case law becomes more developed, however, courts are relying less on the Rehabilitation Act case law. In enacting the ADA, Congress specifically required that the

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Equal Employment Opportunity Commission (EEOC) issue regulations expanding on the legislation.(fn4) In addition, the EEOC has drafted an appendix to the regulations which serves as the agency's interpretive guide to the ADA.(fn5) The regulations and interpretive guidance are given considerable weight unless they are contrary to the plain meaning of the statute.(fn6)

One of the most difficult questions under the ADA has been the definition of what constitutes a reasonable accommodation. Further, the more perplexing question for parties addressing any accommodation issue may be what the employer and employee's duties are with regard to how each must work with the other in an effort to determine whether a reasonable accommodation can be provided. This Article will explore the employer and employee's duties to participate in an interactive process in an effort to determine whether a reasonable accommodation can be provided.

II. ADA BASICS

The ADA, makes it illegal for an employer, employment agency, labor organization, or joint labor-management committee to discriminate against a "qualified individual with a disability."(fn7) The ADA requirements apply to employers who employ 15 or more employees.(fn8) The ADA protects a "qualified individual with a disability" in all aspects of employment.(fn9) "The term 'qualified individual with a disability' means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."(fn10) Under the ADA, disability is defined in one of three ways: "(A) a physical or mental impairment that substantially limits one or more major life

activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment."(fn11)

Major life activities are defined as,

those basic activities that the average person in the general

population can perform with little or no difficulty. Major life

activities include caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing,

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learning, and working. . . . Other major life activities include, but

are not limited to, sitting, standing, lifting, [and] reaching.(fn12)

The term substantially limits means: (i) Unable to perform a major

life activity that the average person in the general population can

perform; or (ii) Significantly restricted as to the condition,

manner or duration under which an individual can perform a particular

major life activity as compared to the condition, manner, or duration

under which the average person in the general population can perform

that same major life activity.(fn13)

The regulations further state:

The following factors should be considered in determining whether an

individual is substantially limited in a major life activity: (i) The

nature and severity of the impairment; (ii) The duration or expected

duration of the impairment; and (iii) The permanent or long term

impact, or the expected permanent or long term impact of or resulting

from the impairment.(fn14)

To state a prima facie case of disability discrimination under the ADA, a plaintiff must establish three elements: (1) that he or she is a disabled person within the meaning of the ADA; (2) that he or she is a qualified individual with a disability; and (3) that the employer took adverse action against the plaintiff because of his or her disability.(fn15)

III. REASONABLE ACCOMMODATION

An accommodation refers to an employer's obligation to consider changes in its ordinary work rules, facilities, terms, and conditions of employment to enable a disabled individual to work.(fn16) Pursuant to the administrative regulations,

a reasonable accommodation may include but is not limited to: (i)

Making existing facilities used by employees readily accessible to and

usable by individuals with disabilities; and (ii) Job restructuring;

part-time or modified work schedules; reassignment to a vacant

position; acquisition or modifications of equipment or devices;

appropriate adjustment or modifications of examinations, training

materials, or policies; the provision of qualified readers or

interpreters; and other similar accommodations for individuals with

disabilities.(fn17)

This is a very broad list of potential accommodations which an employer may be required to consider as reasonable accommodations to known physical or mental limitations of qualified individuals with disabilities.

The ADA requires an employer to accommodate the known physical and mental "limitations" of an otherwise qualified individual with

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a disability.(fn18) This means that knowledge of the "limitations" caused by the disability is required before the employer's duty to accommodate arises. An employer can have knowledge of an individual's disability and not know that there are limitations caused by the disability.

Taylor v. Principal Financial Group, Inc.(fn19) provides guidance related to how employer knowledge can arise.

Where the disability, resulting limitations, and necessary reasonable

accommodations, are not open, obvious, and apparent to the employer,

as is often the case when mental disabilities are involved, the

initial burden rests primarily upon the employee, or his health-care

provider, to specifically identify the disability and resulting

limitations, and to suggest the reasonable accommodations.. . . When

the nature of the disability, resulting limitations, and necessary

accommodations are uniquely within the knowledge of the employee and

his health-care provider, a disabled employee cannot remain silent and

expect his employer to bear the initial burden of identifying the

need for, and suggesting, an appropriate accommodation.(fn20)

Taylor seems to indicate that the employer can never have the initial burden of identifying the need for, and suggesting, an appropriate accommodation unless an employee's disability, and resulting limitations, are open, obvious, and apparent to the employer. This generally means that the employee has the initial burden of informing the employer of his or her limitations and requesting an accommodation. However, "the employee need not mention the ADA or even the term 'accommodation.'"(fn21) An exception to the general rule exists in the case of individuals with severe mental illnesses who are unable to articulate the need for an accommodation. An employer must "meet the employee half-way"(fn22) in order to determine the appropriate accommodation in these cases. This could include approaching the employee to determine if an accommodation is necessary.(fn23) Unlawful discrimination occurs if an employer fails to provide a reasonable accommodation for the known physical or mental limitations of a qualified individual with a disability unless it can be demonstrated that the proposed accommodation would impose an undue hardship on the employer's business.(fn24) A plaintiff has the burden of showing that a reasonable accommodation is possible and that he or she is qualified for the position if the reasonable accommodation is provided. If the plaintiff establishes that a reasonable accommodation is possible, the employer bears the burden of establishing that the reasonable accommodation would impose an undue hardship.(fn25)

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Though 29 C.F.R. section 1630.2 (o)(3) states that it may be necessary for the employer to initiate an informal, interactive process with the employee,(fn26) the administrative regulations say that an appropriate reasonable accommodation is best determined when both the employer and the employee participate in a flexible and interactive process.(fn27) ADA Interpretive Guidance section 1630.9 reads in pertinent part as follows:

When a qualified individual with a disability has requested a

reasonable accommodation to assist in the performance of a job, the

employer . . . should: (1) Analyze the particular job involved and

determine its purpose and essential functions; (2) Consult with the in

dividual with a disability to ascertain the precise job...