Labor and Employment Law Update: Which Way Do We Go? Courts are Split in Determining Whether an Employer's Failure to Engage in the "Interactive Process" Creates Liability

I. Americans with Disabilites Act
II. Independent Liability?
III. No Independent Liability
IV. How Do I Engage in the "Interactive Process"?

Americans with Disabilities Act

One of the fastest growing areas of employment litigation is the Americans with Disabilities Act (ADA). The ADA prohibits discrimination against employees with disabilities who are qualified, with or without reasonable accommodation, to perform the essential functions of their job. 42 U.S.C. ' 12112(8). Under the ADA, when an employee has a disability, his or her employer must accommodate the limitations resulting from that disability to the extent an accommodation is "reasonable" and does not unduly burden the operations of the employer's business. A reasonable accommodation "may include . . . job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, . . . and other similar accommodations for individuals with disabilities." For an employee to establish a claim under the ADA, the employee must show that he or she: (1) is a disabled person within the meaning of the ADA; (2) is able to perform the essential functions of the job with or without reasonable accommodation; and (3) has been subjected to an adverse employment action because of his or her disability.

A frequent subject of litigation is the extent of an employer's obligation under the ADA to determine if an appropriate reasonable accommodation can be made. Employers often plead as an affirmative defense to an ADA claim that they have made a "good faith" effort to determine a reasonable accommodation. However, many employers are actually uncertain as to the scope of their responsibility in searching for an accommodation, once informed that an employee has a disability. Does the employer establish the existence of a reasonable accommodation? Or is that the responsibility of the employee? How can the employer and employee agree upon an accommodation that is reasonable?
Clearly, before ADA liability may be triggered for failure to provide reasonable accommodations, an employee has the duty to inform the employer of a disability. Thus, the ADA requires only reasonable accommodations "to the known physical and mental limitations" of the employee. 42 U.S.C. ' 12112(b)(5)(A).

Nevertheless, the employer has at least some responsibility in determining the necessary accommodation. As the regulations implementing the ADA state:

To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

29 C.F.R. ' 1630(o)(3) (emphasis added). The regulations also refer to a "flexible," interactive process that involves both the employer and the employee with the disability. 29 C.F.R. ' 1630, app. (1995). We recommend that employers engage in an "interactive process" to identify means for reasonably accommodating a disability covered by the ADA. However, the question remains as to whether failing to do so will result in potential liability. As discussed below, courts are divided on whether the employer's failure to engage in an "interactive process" under the ADA will create liability, independent of whether an employer may be liable for failure to make a reasonable accommodation.

Independent Liability?

The United States Courts of Appeals for the Third, Fifth, and Seventh Circuits have all implied that an employer may increase its exposure to liability under the ADA if an employer fails to engage in an "interactive process" with the employee. Mengine v. Runyon, 114 F.3d 415, 420 (3d Cir. 1997); Taylor v. Principal Fin. Group, 93 F.3d 155, 165 (5th Cir.), cert. denied, 136 L. Ed. 2d 515, 117 S. Ct. 586 (1996); Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996). The First Circuit has indicated that it may also follow the Third, Fifth, and Seventh Circuits. See, Jacques v. Clean-up Group, Inc., 96 F.3d 506, 513-14 (1st Cir. 1996).

The Mengine Court found that an employer is required to participate in an "interactive process" under the Rehabilitation Act, a statute analogous to the ADA. In Taylor, the court recognized that the employee's initial request for an accommodation triggers the employer's obligation to participate in the "interactive process" of determining an accommodation. Finally, the Beck Court held that both parties have a responsibility to participate in an interactive process and that "courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary." These decisions can be interpreted as creating potential liability under the ADA, independent of the central issue of whether a "reasonable accommodation" was or could have been made.

The Second, Fourth, Sixth, Eighth, and D.C. Circuits have not ruled on this issue.

No Independent Liability

Other courts, however, have decided that an employer's failure to engage in the "interactive process" does not create additional liability.

Most recently, the Ninth Circuit decided that an employer's failure to engage in an "interactive process" with an employee, in and of itself, does not create additional liability. In so ruling, the Ninth Circuit joined the United States Courts of Appeals for the Tenth and Eleventh Circuits in limiting an employer's role in disability accommodation. White v. York Int'l Corp., 45 F.3d 357, 363 (10th Cir. 1995) (noting that the regulations only recommend that an interactive process occur, and only after the employee shows that reasonable accommodation is available); See also Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (employer cannot be found liable "merely for failing to engage in the [interactive] process itself"). In Barnett v. U.S. Air, Inc., 157 F.3d 744 (9th Cir. 1998), the court stated that the ADA and its regulations do not create independent liability for the employer for failing to engage in an "interactive process" to find a reasonable accommodation.

In reaching its conclusion, the Ninth Circuit found that the employee failed to show that he was able to perform the essential functions of the job either with or without an accommodation. The court added that employers may want to follow regulations calling for an "interactive process." However, the court specifically held that meetings and discussions with the employee regarding accommodations are not mandatory.

The court clarified the issue of liability under the ADA for west coast employers by framing the core issue as follows: Did the employer fail to make required reasonable accommodations for the employee? The court concluded that an employer's failure to engage in an "interactive process" may be relevant to that inquiry, but does not create a separate issue that would create additional liability.

How Do I Engage in the "Interactive Process?"

We recommend that employers engage in an "interactive process" with their employees with disabilities to discuss possible accommodations. Such a process will assist in determining whether any accommodation can be made, and will limit an employer's exposure should it determine that no reasonable accommodation exists. This "interactive approach" should include, but not be limited to, the following:

1. Meet with the employee who requests an accommodation. If the employer attempts to communicate with the employee, but the employee does not cooperate, the employee will be held responsible for the breakdown.

2. Obtain as much information as possible about the condition. With that information, the employer can defend its selection of the specific accommodation against any later attack.

3. Discuss available alternatives, identify potential accommodations, and assess the effectiveness each would have in enabling the employee to perform the essential functions of the position.

4. Ask the employee what he or she specifically wants in terms of an accommodation, and act on it. Failure to do so may lead to a breakdown of the "interactive process."

5. Consider the employee's request seriously, and do not rush to a conclusion about the possibility of reaching an accommodation. This serious, steady approach is especially appropriate when dealing with employees with mental disabilities.

6. Include suggestions for alternative accommodations in situations where the employee's requested accommodation cannot be implemented. Be prepared to explain why the alternatives suggested by the employee were inadequate, or could not be adopted, to reasonably accommodate the employee's health condition.

7. Document the resolution at the end of the process to avoid any misunderstandings.

Better Safe Than Sorry

Knowledgeable employers know that they should invest time conversing with employees in an effort to identify means for reasonably accommodating a disability covered by the ADA. This is not only good practice, but could provide a complete defense to a claim under the ADA for damages. Therefore, engaging in the interactive process in "good faith" provides a win-win situation for both the employers and the employees.
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