Under the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), employers generally must provide “reasonable accommodations” to disabled employees, unless such accommodations constitute an “undue hardship.” While disabled employees seeking an accommodation bears the burden of producing evidence that a specific, reasonable accommodation was available, employers still must make a good faith effort to work with the employee to help determine appropriate accommodations, if any. (The “good faith interactive process”.)
A recent Ninth Circuit Court of Appeals opinion clarifies employers’ duties to work with employees to identify reasonable accommodations. The Ninth Circuit determined that employers’ failure to engage in a good faith interactive process to identify reasonable accommodations that would assist an employee in performing his or her position prevents the employer from prevailing on a motion for summary judgment. If an employer fails to carefully consider whether or not the employee’s requested accommodations were reasonable, then the issue of reasonable accommodations may proceed to trial and may be left for a jury to determine.
As of January 1, 2001, it will be an unlawful employment practice under the FEHA for an employer in California to fail to engage in a good faith interactive process. Now, given this Ninth Circuit decision and this new legislation, it is more important than ever for employers to understand their legal obligations and to take steps to ensure a well-documented, good faith effort to discuss, analyze and provide reasonable accommodations to qualified employees, where available.
In Barnett v. U.S. Air (2000) 2000 DAR 10883, the Ninth Circuit Court of Appeals has provided additional guidance to employers on some of the specific requirements of this good faith interactive process.1
In Barnett, a cargo agent with a back injury requested three specific accommodations. Barnett, first requested to be transferred from a cargo position (that required heavy lifting) to a mail room position. U.S. Air agreed to temporarily place Barnett in the mail room. In August 1992, Barnett learned that two employees planned to transfer to the mail room. Under the seniority system followed by U.S. Air, the two employees would be entitled to bump Barnett out of the mail room position. On August 31, 1992, Barnett wrote a letter to his station manager requesting that he be allowed to stay in the mail room as a reasonable accommodation under the ADA. U.S. Air did not respond to Barnett’s request for five months, but allowed him to stay in the mail room during this time. On January 20, 1993, U.S. Air informed Barnett that he would be removed from the mail room and placed on “job injury leave.”
Barnett wrote a second letter proposing his second and third requests for accommodations. He asked U.S. Air to either: (1) provide special lifting equipment so that he could perform the duties of the cargo position; or (2) restructure the cargo job so that he could do only warehouse office work. U.S. Air denied the requests approximately two months later with little apparent consideration of the specific requests. Instead, U.S. Air informed Barnett that he could bid for any available positions within his physical limitations.
Barnett filed suit bringing claims for disability discrimination and retaliation under the ADA. The district court granted summary judgment for U.S. Air and Barnett appealed. The Ninth Circuit affirmed the dismissal of Barnett’s retaliation claims because he failed to demonstrate a causal connection between all three requests and his placement on job injury leave. The Ninth Circuit, however, did remand Barnett’s discrimination claim to the district court for trial on the ground that U.S. Air’s failure to engage in a good faith interactive process precluded U.S. Air from obtaining summary judgment. The Ninth Circuit reasoned that material issues of fact existed as to whether or not Barnett’s requested accommodations were reasonable. If any reasonable accommodations were available, the Ninth Circuit opined that U.S. Air may have violated the ADA by failing to provide such reasonable accommodation.
The Ninth Circuit ruled that U.S. Air’s longstanding seniority system did not necessarily eliminate Barnett’s rights to remain in the mail room. Rather, a seniority system is merely one factor to consider in determining rather reassignment to a different position might constitute an “undue” burden to U.S. Air. An undue burden is defined as “significant difficulty or expense.” The employer must make a case by case determination of whether permitting a qualified disabled employee to transfer in spite of an established seniority system, would result in significant difficulty or expense (“undue burden”).2
REQUIREMENTS OF THE GOOD FAITH INTERACTIVE PROCESS:
What triggers an employer’s duty to engage in the interactive process?
An employee’s request for an accommodation; OR
An employer’s knowledge that an employee suffers from a disability that limits the employee’s ability to perform the essential functions of the position, and an employee’s inability to request an accommodation.
Four steps employer’s should follow when engaging in the interactive process
The court endorsed the EEOC regulations which identify four steps an employer should follow:
Analyze the particular job involved and determine its purpose and essential functions;
Consult with the individual with a disability in person to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation. Carefully consider any accommodations requested by the employee. If an employee’s request is denied, provide an explanation documenting the reason the request is unreasonable and propose alternative accommodations, if possible;
In consultation with the employee, identify potential accommodations and assess the effectiveness each would have in enabling the employee to perform the essential functions of the position and;
Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.
Reasonable accommodations may include (but are not limited to):
A transfer to a different position. If a disabled employee could perform a different position, with or without a reasonable accommodation, and the position is available, the employer is required to transfer the employee to that position. If an employer’s policy prohibits or limits the availability of a transfer, the employer may be required to make an exception to this policy. For example, if an employer’s seniority system prevents such a transfer to a preferred position, the seniority system is only one factor the employer should consider in determining if the accommodation constitutes an undue hardship. Other factors might include the duration and severity of any adverse effects caused by granting a variance to the policy and the number of employees whose employment opportunities are affected by the variance. Absent a showing of undue hardship, employers may be required to make exceptions to seniority systems for the benefit of disabled individuals. In Barnett, the Court explained that employers should not merely allow disabled individuals to compete for other positions. If the disabled individual is qualified for the position, the employee “should receive the position rather than merely have an opportunity to compete with non-disabled employees.” Barnett, 2000 U.S. App. LEXIS 24707 at p. 38.
Modification of the position. Sometimes a position can be modified so that one employee does not have to perform certain duties. For example, in Barnett, the cargo agent position required working the front office and occasional heavy lifting in the warehouse. The employer failed to make a good faith effort to determine whether Barnett could work the front office while others handled the heavy lifting. The Court ruled that the proposed modification may have been an appropriate reasonable accommodation that U.S. Air should have considered.
Assistive devices. The employer may be required to provide assistive devices if such devices can be provided without unduly burdening the employer. For example, in Barnett, it may have been reasonable for the airline to provide a low-tech device to assist Barnett in lifting suitcases. The employer’s failure to consider this alternative in good faith precluded the employer from obtaining an early resolution of the case.
What to do now:
Provide training to managers, supervisors, and Human Resources personnel to ensure that they will recognize a request for an accommodation and respond appropriately in a timely fashion.
Consult experts in the field of disability accommodation to assist in the interactive process and the determination of an appropriate accommodation.
Update personnel practices to include guidelines and/or a checklist for engaging in the interactive process. The guidelines should include reference to documenting every request, every meeting, every offer of accommodation, and the reasons why any particular request was denied. This determination can be a very difficult task, full of legal landmines, and conflicting opinions. Nevertheless, employer’s must demonstrate their best efforts to fully consider the realm of possibilities when attempting to identify a reasonable accommodation that would permit a disabled employee to continue in the position.
1 Despite the recent changes to the FEHA, which differentiate California from federal disability law, California courts are likely to look to the Barnett decision for interpretation of the requirements of the good faith interactive process. The new California legislation specifically refers to the Equal Employment Opportunity Commission (“EEOC”) interpretive guidelines for interpretation of the good faith, interactive process requirements, and the EEOC interpretive guidelines are a central focus of the Barnett decision. For more information on the recent changes to the Fair Employment and Housing Act disability discrimination law, go to: California Expands Disability Discrimination Statute and Imposes New Requirements and Limitations on Employers.
UPDATE: The California Supreme Court granted review of the Barnett v. U.S. Air opinion. As a result, the opinion cannot be cited.
2 In December 1998, the Ninth Circuit held that an employer is not required to provide an accommodation to a qualified disabled employee if the accommodation conflicts with a non-discriminatory seniority system set forth in a collective bargaining agreement. Willis v. Pacific Maritime Assoc., 162 F.3d 561, (9th Cir. 1998). In Barnett, the court in a footnote acknowledges that this case did not involve a collective bargaining agreement between U.S. Air and its employees. Barnett at *36, n2.
3 See 29 C.F.R. Pt. 1630, App. § 1630.9.