When and under what circumstances an employer is obligated to provide an employee with a disability a reasonable accommodation is a tricky issue. The confusion is compounded when the employee's disability is a mental condition or a condition with "invisible symptoms". Employers can take comfort, however, in the knowledge that the ADA does not require the employer to guess when to provide a reasonable accommodation for such conditions. It is the employee's initial request for an accommodation which triggers the employer's obligation to participate in the "interactive process" of fashioning a reasonable accommodation. Therefore, if the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one.
EEOC regulations provide "when the need for an accommodation is not obvious, an employer, before providing a reasonable accommodation, may require that the individual with the disability provide documentation of the need for accommodation." 29 C.F.R. §1630, App. §1630.9 (1996). In Miller v. National Casualty Co., 61 F.3d 627 (8th Cir. 1995), the court affirmed summary judgment in favor of the employer where, after repeated requests, the employee failed to provide medical documentation that specifically disclosed her manic depression, but nevertheless requested a reasonable accommodation.
However, when the employee does disclose the existence of a disability and requests a reasonable accommodation, both the employee and the employer have a duty to assist in the search for an appropriate reasonable accommodation and to act in good faith. This is the essence of the interactive process.
The Employees' Burden to Identify a Reasonable Accommodation
In Geuss v. Pfizer, Inc., 971 F.Supp. 164 (E.D. Pa. 1996), the court held that an employee must make a prima facie showing that reasonable accommodation is possible. The plaintiff was required to request a reasonable accommodation that would enable him to perform the essential functions of his job. If the plaintiff is able to meet that burden, the employer then bears the burden of proving that the accommodation requested by the plaintiff was unreasonable, or would cause an undue hardship on the employer.
It is not enough, however, for the employee to make vague suggestions or references with respect to an accommodation. Rather, it is the employee's responsibility to come forward and tell the employer specifically what he or she needs to be able to perform the job. In Geuss, the employee requested a transfer from his current location. The court held that the employee must produce some evidence that the position was open, available, and that the employee was qualified to do it. The court noted:
It must be emphasized that at this stage of the process, the plaintiff only has to make a prima facie showing that he has suggested a reasonable accommodation. Once a plaintiff has made such a showing, the ADA contemplates an interactive process between the parties in which both sides works together in identifying reasonable accommodations hat can overcome plaintiff's limitations. Id. at 175.
Employer's Duty to Act in Good Faith
The employee's initial request for an accommodation triggers the employer's obligations to participate in the interactive process. Courts have held that when the interactive process works well, it furthers the purposes of the ADA. Mengine v. Runyon, 114 F.3d 415 (3rd Cir. 1997).
In Mengine, the court observed that the employer had a duty to make reasonable efforts to assist Mengine to communicate with him in good faith and to not impede his investigation. Id. at 420; see also Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130 (7th Cir. 1996) ("A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith.")
Employers will not always know what kind of work an employee with a disability can do, and conversely the employee may not be aware of the range of available employment opportunities, especially in a large company. There are organizations available to assist employees and employers in ascertaining reasonable accommodations that do not create undue hardships. Thus, the interactive process may often lead to the identification of a suitable position. If it turns out there is no job which the employee (with or without accommodations) is capable of performing, then the employer cannot be held liable under the ADA. See Willis v. Conopco, Inc. 108 F.3d 282 (11th Cir. 1997) ("where a plaintiff cannot demonstrate reasonable accommodation, the employer's lack of investigation into reasonable accommodation is unimportant").
Nonetheless, if an employer fails to engage in the interactive process, it might not discover a way in which the employee's disability could have been reasonably accommodated, thereby risking violations under the ADA.