Americans with Disabilities Act Update The Eleventh Circuit Court of Appeals Rules that the Disabled Employee must Identify what is a "Reasonable Accommodation"
The Americans with Disabilities Act ("ADA") forbids discrimination in the workplace against qualified individuals with a disability. An employer may be guilty of discrimination if he does not make a "reasonable accommodation" to the physical or mental limitations of an otherwise qualified individual.
Such cases pose this question: who bears the very practical burden of identifying what is a "reasonable accommodation"? Employees argue that the employer has a superior understanding of job requirements and must be responsible for identifying the accommodation. However, employers may legitimately be at a loss to know how a job can be tailored to accommodate an employee's disability. Employers argue that the disabled person best understands his limitations and should be required to articulate an accommodation.
A recent Georgia case from the Eleventh Circuit Federal Court of Appeals, Willis v. Conopco, Inc., ___ F.3d ___ (11th Cir., decided March 25, 1997), decided that the employee has the legal obligation under the ADA to identify which specific accommodations would allow him to do his job.
This article will:
(1) provide a thumbnail overview of the ADA;
(2) discuss who is responsible for identifying what is a "reasonable accommodation;" and
(3) discuss how the recent case of Willis v. Conopco, Inc. addressed this issue in Georgia.
THUMBNAIL OVERVIEW OF THE ADA
The ADA took effect on July 26, 1992. The Act prohibits certain employers ("covered entities") from discriminating against the disabled in hiring and in all terms, conditions and privileges of employment.
The term "disability" means, with respect to an individual,
(1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(2) a record of such impairment; or
(3) being regarded as having such an impairment.
To sue under the ADA, in addition to being "disabled," a person must also be a "qualified individual with a disability." The term "qualified individual with a disability" means "an individual with a disability who, with or without accommodation, can perform the essential functions of the employment position ...." Thus, the employer cannot reject a disabled person for employment simply because he may not be "qualified" in the common understanding of that term. Instead, a person may be "qualified" under the ADA if he can perform essential job functions with certain accommodations. The employer may therefore have an affirmative duty to alter the configurations of a job to "accommodate" a person's disability.
An employer may incur ADA liability if he does not make a reasonable accommodation to a qualified employee's known disability. (An exception arises where the accommodation would cause the employer undue hardship.) Reasonable accommodations may include making facilities more accessible, restructuring jobs, creating modified work schedules, reassigning disabled persons to vacant positions, modifying equipment and providing readers or interpreters.
WHO IS RESPONSIBLE FOR IDENTIFYING WHAT IS A "REASONABLE ACCOMMODATION"?
Recent court decisions illustrate the process by which a reasonable accommodation is achieved. The cases also grapple with the issue whether the employer or employee bears the ultimate responsibility for identifying what accommodations are needed.
In Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130 (7th Cir. 1996), a university secretary sued under the ADA. Beck had worked for the university since 1967. By 1991 she suffered from multiple medical conditions, including osteoarthritis and depression. She took a three-month leave of absence. Upon her return, Beck was given lighter duties and an opportunity to learn word processing. However, repetitive keyboarding aggravated her osteoarthritis, and her doctor advised against it. Beck was subsequently hospitalized with severe anxiety and depression. When she returned to work, her doctor wrote the university requesting some "reasonable accommodation" to avoid a recurrence.
The university requested that Beck provide access to her medical records, but she refused. A meeting to discuss possible accommodations never took place. Although Beck was given a wrist rest for use in keyboard work and her workload was reduced, the university eventually wrote to Beck stating that it did not understand what accommodations were necessary. After a third leave of absence, Beck refused to report back to her regular job and the university terminated her.
In its defense, the university asserted that it did not know what accommodations were necessary. The university argued that it would have provided appropriate accommodations if it had been told what to do.
The dispute centered on whether the university or Beck bore the ultimate responsibility for identifying what accommodations were needed. In determining what accommodations should be made, the court stated that the employer must be willing to consider making changes in its ordinary work rules, facilities, etc. to enable the disabled person to work. Further, under federal regulations, it "may be necessary for the [employer] to initiate an informal, interactive process" with the employee to identify the precise accommodations necessary to overcome the disability. The court noted that both Beck and the university had engaged in an interactive process which unfortunately broke down. Under those circumstances, neither the ADA nor the regulations say who is responsible. Thus, the court looked to the parties' "good faith" in trying to decide what specific accommodations were needed. Using this analysis, the court faulted Beck for not identifying the necessary specific accommodations. The court noted that only Beck herself could pinpoint the specific necessary accommodations.
In Moses v. American Nonwovens, Inc., 97 F.3d 446 (11th Cir. 1996), the court again discussed the process by which the parties determine what is a reasonable accommodation. There, the employer fired Moses (an epileptic) from his job as a product inspector on a mechanized line. The employer feared that Moses would have seizures on the job, posing a direct threat to his safety. At no time before firing Moses did the employer investigate possible accommodations, which the court found troubling. Nevertheless, the court rejected Moses' ADA claim because he failed to produce evidence citing what specific accommodations would allow him to work safely.
Some decisions, however, remind employers that they cannot ignore their responsibility to work toward finding a reasonable accommodation.
"The ADA represents a major commitment by the federal government to assure adequate protection to Americans with disabilities. There may well be situations in which the employer's failure to engage in an informal interactive process would constitute a failure to provide reasonable accommodation that amounts to a violation of the ADA."
Jacques v. Cleanup Group, Inc., 96 F.3d 506 (1st Cir. 1996)
WILLIS V. CONOPCO, INC.
In a Georgia case, the Eleventh Circuit Court of Appeals recently ruled that the employee and not the employer has the burden of both proposing a concrete accommodation and establishing that the accommodation is reasonable. In Willis v. Conopco, Inc., Willis worked in a laundry detergent plant. Willis had a disability due to her sensitivity to enzymes contained in the detergent. Because of this, the employer reassigned Willis to a spare parts area in the plant with a lower enzyme level, gave her a protective mask and made efforts to keep her away from high enzyme areas. Willis took leave from work for unrelated medical reasons. Before she returned, her doctor recommended that she not work in the plant at all. Willis thus refused to work in the spare parts area and requested that the employer either (1) reassign her to a "safe work area" or (2) enclose and air condition the spare parts area. When the employer received a medical opinion that Willis was capable of working in the plant, the employer insisted that she return. When Willis did not return, she was fired.
Willis argued that her employer made no attempt to make a reasonable accommodation, neither transferring her nor making the spare parts area safe. Willis also contended that she should not have the burden to request a specific accommodation, arguing that the ADA merely required that she request accommodation (in the abstract), at which point the employer became obligated to enter into a "flexible, interactive process" contemplated by the regulations.
The court rejected Willis' ADA suit because she failed to demonstrate what was a "reasonable accommodation." The employer's failure to investigate and engage in a pre-termination investigation did not relieve Willis of this obligation. Willis offered no evidence that any alternative job existed within the plant. She also failed to prove that if the employer enclosed and air conditioned the spare parts area, her problem would be eliminated. For this reason, the court dismissed her ADA claim.
Employers may be liable for discrimination under the ADA if they fail to make "reasonable accommodations" for qualified disabled persons. What constitutes a "reasonable accommodation" may differ from case to case. To comply with the ADA, the employer ought to engage the employee in a good faith "interactive process" to determine a specific accommodation. Ultimately, however, the legal burden for identifying the particular accommodation lies with the employee.