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The ADA, Reasonable Accommodation and the Interactive Process

EPS' RealSolutions® Podcasts kick off this month with a conversation with this month's newsletter author, Jill Holtzman, Esq. To learn more about Jill's experience with the ADA, listen to our podcast.

The Americans with Disabilities Act of 1990 (ADA) was signed into law on July 26, 1990, by President George H. W. Bush and was later amended with changes that became effective January 1, 2009.

The ADA, a civil rights law, prohibits discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964 did with respect to race, religion, sex, and national origin. Unlike the Civil Rights Act, the ADA requires covered employers to provide reasonable accommodations to employees with disabilities.

The addition of providing a reasonable accommodation under the ADA has challenged HR professionals and lawyers alike since the ADA was enacted. While, the statute itself does not provide a great deal of specific guidance, there are several court cases and EEOC guidance which help practitioners decipher the intricacies of the interactive process.

Barnett and the Interactive Process
In Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000)[1], the Ninth Circuit Court of Appeals addressed the interactive process in depth, noting that “the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and . . . this obligation is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for an accommodation.”

The Barnett case establishes guidelines for the interactive process, and the court’s discussion is extremely helpful to employers working with employees with disabilities. According to the court, an employer should  

  • explore accommodation options in good faith,
  • communicate directly with the employee,
  • demonstrate good faith, and
  • identify the barrier to job performance. 

In Barnett, the court held that the employer did not engage in the interactive process in good faith because it rejected the employee’s proposed accommodation, but, at the same time, failed to offer any practical alternatives. It is important to remember that the burden is on both the employee and the employer.

The court made it very clear that employers are required to engage in the interactive process. Thus, an employer who neglects (or refuses) to engage in the interactive process does so at its own peril. Although the court did not hold that there is an independent claim for failure to engage in the interactive process, the actual consequences are just as severe.

The failure to participate in the interactive process in good faith deprives the employer of its immunity from damages for failure to reasonably accommodate an employee. Generally, if an employer fails to provide an employee with a reasonable accommodation, that employee can recover damages. However, if the employer engages in the interactive process in good faith, that employer could be immune from damages. 

EEOC Guidance on Accommodation
The EEOC issued guidance in 2002[2]  that made it clear that after receiving a request for reasonable accommodation the employer and the individual with a disability must engage in an informal process to clarify what the individual needs and identify the appropriate, reasonable accommodation. The employer may ask the employee relevant questions that will enable it to make an informed decision about the request. This inquiry may include asking the employee what type of reasonable accommodation is needed, the nature of the disability and the individual's functional limitations in order to identify an effective accommodation. Suggestions from the individual with a disability may assist the employer in determining the type of reasonable accommodation to provide. Each request for reasonable accommodation must be handled on its own merits. There is not an out of the box accommodation for each disability. The interactive process is required to determine what works for both the individual and the employer.

Kohl’s and the Interactive Process
A recent federal appellate court opinion highlights the importance of taking the proper steps when discussing a possible reasonable accommodation with a disabled employee under the ADA. In EEOC v. Kohl’s Department Stores, Inc.[3] , the First Circuit held that the employer was not liable for discrimination under the ADA because the employer tried to discuss possible accommodations with the employee but the employee quit and refused to continue to engage in the interactive process with the employer.

Pamela Manning was a full-time sales associate at Kohl’s and suffered from Type I Diabetes. Kohl’s had restructured its staffing system in 2010 resulting in full-time associates having to work various shifts, including night, weekend, and “swing shifts” (consisting of a night shift followed by an early day shift). Manning said that the erratic shifts aggravated her diabetes, and her doctor sent a letter to the store requesting that Manning be scheduled to work “a predictable day shift (9a-5p or 10a-6p).” A human resources representative determined that Manning could be excused from working swing shifts, but that it was not feasible to excuse her from night and weekend shifts.  

Subsequently, the store manager met with Manning and told her that she could not provide a steady 9-5 schedule. Manning became upset, told the store manager that she was quitting and left the meeting. On two separate occasions the store manager asked Manning to reconsider her resignation and to discuss possible “alternative accommodations.” At no point did the store manager actually tell Manning what accommodation the store could provide – e.g., excusing her from working swing shifts. 

The First Circuit affirmed judgment for Kohl’s, rejecting the EEOC’s argument that the store failed to accommodate Manning under the Americans with Disabilities Act, and that it constructively discharged her. A request for an accommodation generally triggers a duty to engage in an “interactive process,” and the court stressed that both sides must participate in the dialogue. The court concluded that Kohl’s made “an earnest attempt to discuss other potential reasonable accommodations” and the employee had been responsible for the breakdown in communications. This case serves as a reminder that employers do not have to grant special scheduling requests if doing so is not a reasonable option given the employer’s personnel structure. If an employer does reject an accommodation request, the employer should not go silent. The better practice is to suggest a specific alternative to keep the interactive process alive and to document those efforts. A little communication will go a long way, even if it is open-ended.

The court emphasized the fact that the store manager made two attempts to engage the employee after she had quit. In fact, the “interactive process” in this case took place almost entirely after the employee quit, which helped thwart both the failure to accommodate claim and the constructive discharge claim. According to the First Circuit, when the employee fails to cooperate, the employer cannot be held liable under the ADA for failure to provide a reasonable accommodation. Manning’s refusal to participate in the interactive process was the primary reason that the process broke down and, therefore, Manning could not avoid summary judgment on her ADA claim. The key to this decision was the fact that after Kohl’s declined to provide the schedule requested by Manning, the company made concrete and documented efforts to continue the dialogue in order to discuss other reasonable accommodations. Without those additional efforts at an ongoing interactive process – even after the employee quit, this case may have been decided very differently.

Key Points
Managers and supervisors are often the first recipients of a request for reasonable accommodation. They must be trained to recognize a request for accommodation, notify the appropriate individuals within the company that a request has been made and participate as needed in the interactive process.

Human Resource professionals must stay abreast of the requirements of the ADA and stay vigilant and persistent during the interactive process. If an employee does reject a specific offer of a reasonable accommodation, keep the interactive process alive by asking additional questions and documenting the process along the way. They may even go so far as to offer an alternative to the originally requested accommodation. Should a voluntary or involuntary termination occur within the disability context when a request for accommodation has been made, it may be important to continue to interactive process even after the employee has made their exit.

Reasonable accommodation and the interactive process as they relate to the ADA can be a complex undertaking by all parties. The key to a successful outcome, like many endeavors, requires communication and a willingness to be open to solutions that make sense for both the employer and the employee.

1 U.S. Airways, Inc. v. Barnett, 535 U.S. 391

2 Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC 2002

3 EEOC v. Kohl’s Department Store Inc.