Legal E-Bulletin - June 2000

Reasonableness, Accommodations, and 
Reasonable Accommodation Under the ADA

I. INTRODUCTION TO REASONABLE ACCOMMODATION

 One the greatest innovations contained in the ADA has become one of most contentious areas of disability rights litigation: the requirement to provide reasonable accommodations. The statutory provisions requiring employers to provide a reasonable accommodation and the accompanying defenses are stated quite simply.  Discrimination based on disability is prohibited, and failure to provide a reasonable accommodation is identified in the statute as a specific form of disability based discrimination that is prohibited under the ADA.  The statute makes plain that the requirement to accommodate is limited.  The employer is not required to make extraordinary or heroic efforts to accommodate an employee with a disability.  The employer is bound only to act reasonably and to provide accommodations only to the extent that they are reasonable.  If the burdens of accommodating the employee are unduly expensive or difficult, then the employer may have a complete defense to liability.

II. THE GENERAL RULE REGARDING DISCRIMINATION AND ITS RELATIONSHIP TO REASONABLE  ACCOMMODATION

 The ADA set forth a general rule prohibiting disability based discrimination.  The general rule provides that "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."  42 U.S.C. § 12112(a).  The ADA further refines the meaning of the general rule by setting forth specific types of conduct that constitute unlawful discrimination.  Two of these specific types of discriminatory conduct relate to reasonable accommodations.

 A. Discrimination Includes the Failure to Provide a Reasonable Accommodation.

 First, the ADA specifically identifies "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A).  Failure to make a reasonable accommodation is the most common form of discrimination in the area of reasonable accommodations.

 B. Denying Employment Opportunity to Avoid Providing a Reasonable Accommodation.

 There is, however, a second form of discrimination regarding reasonable accommodation that is specified in the ADA.  It is also discrimination to deny ". . . employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant." 42 U.S.C. § 12112(b)(5)(B). This means that if an employer were to deny a person a job, a promotion or some other employment opportunity to avoid providing a reasonable accommodation, the action is the same as denying the person the opportunity based on their disability.  An employer cannot avoid providing a reasonable accommodation by limiting an employee or prospective employees to only those employment opportunities where no accommodation is required. 42 U.S.C. § 12112(b)(5)(A).

III. WHICH MODIFICATIONS AND ADJUSTMENTS CONSTITUTE REASONABLE ACCOMMODATIONS - i.e. How to know one when you see one.

 A. Statutory Definition Is Illustrative Rather That Precise.

 An employer has an obligation to provide reasonable accommodations, but what is a reasonable accommodation? The ADA defines the term by providing illustrative examples of the types of alterations in the work place that could be considered a reasonable accommodation, rather then identifying the essential characteristic elements.  Under 42 U.S.C. § 12111(9), the term "reasonable accommodation" may include: "making existing facilities used by employees readily accessible to and usable by individuals with disabilities."  42 U.S.C. § 12111(9)(A). The term also includes "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities."  42 U.S.C. § 12111(9)(B).

 The result, however, is that the statute does not precisely define the meaning of "reasonable accommodation."  Rather, the statute merely gives illustrative examples of the types of things that may be reasonable accommodations.  The statute offers a general meaning with no precise definitional limits or boundaries. Obviously, the drafters of the ADA intended the term to have great flexibility, and they used illustrations rather than enumerating characteristic essential elements. The precise contours of the reasonable accommodations are left to the employer and employee to give unique meaning to the term according to the particular employment situation with due regard to the statutory examples.  In the absence of an agreement by the employer and employee, it is left for the court to decide.
 

 B. Regulations Identify the Characteristics of Effectiveness and Job Related Objective Essential to Every Reasonable Accommodation.

 The regulations offer a bit more clarity.  In 29 C.F.R. § 1630.2(o)(1), the regulations provide that the term reasonable accommodation means: "(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or (ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or (iii) Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities."  29 C.F.R. § 1630.2(o)(1).

 The regulations are a helpful clarification because they make plain that adjustments or modifications in the workplace must have a work related purpose to be considered a "reasonable accommodation."  In pre-employment procedures, adjustments or modifications must have the effect of enabling a qualified applicant with a disability to be considered for the position.  During employment, the alterations or modifications must have the effect of enabling a qualified individual with a disability to perform the essential functions of that position to be considered a "reasonable accommodation."  Regarding other benefits and privileges of employment, to be considered a "reasonable accommodation" the modification or adjustment must enable an employee with a disability to enjoy equal benefits and privileges of employment that are enjoyed by other similarly situated employees without disabilities.  These are the three purposes or objectives of any reasonable accommodation: (1)  to be considered for the position; (2) to perform the essential functions; or (3) to enjoy equal benefits and privileges. If a proposed or requested adjustment in the work place is not calculated to achieve one of these three general purposes, it is not within the scope of a reasonable accommodation.

 The regulations define the term reasonable accommodation in terms of enabling the disabled person to achieve the objectives of being equally considered, of performing essential job functions, and enjoying equal benefits.  Consequently, reasonable accommodations must have two essential characteristics.  First, the adjustment or modification must have a specific job related objective or purpose.  An adjustment or modification that does not have the effect of enabling the employee to be equally considered for employment, enable the employee to perform essential functions, or enjoy equal benefits and privileges of employment are outside the scope of the meaning of "reasonable accommodation."  An adjustment or modification that does not have a  work related objective is not within the meaning of  a "reasonable accommodation."  The employer is not obligated to provide modifications or adjustments that have the effect of achieving a strictly personal convenience for the employee or affording the employee a strictly personal benefit, because an effect that is strictly personal has no job related benefit.

 The other essential characteristic of a reasonable accommodation that is suggested by the regulations is that the adjustment or modification be effective to achieve the desired objective.  A modification or adjustment that is not effective in enabling equal consideration, enabling performance of essential job functions, or enabling receipt of equal benefits of employment is not a reasonable accommodation.  Even though a selected or proposed accommodation may be reasonably calculated to achieve a work related objective, it is not a reasonable accommodation if in actual practice it is ineffective to achieve the intended objective.  An ineffective adjustment or modification is inherently unreasonable because it is a futile effort that does not achieve the desired objective or effect.  An accommodation, however, may need to be tried to determine if it is in actuality ineffective.

 While no court has expressly held that effectiveness and a job related objective are the two essential characteristics of a reasonable accommodation, the language of the regulations suggest that these characteristics are essential in every reasonable accommodation.

 C. Reasonable Accommodation Must Not Be Unduly Burdensome.

 In addition to being effective and having a job related objective, a reasonable accommodation must also not be unduly burdensome on the employer.  There are a number of factors that are relevant to determining when a hardship on an employer becomes undue.  These factors are addressed below along with cases and examples.  In general, undue hardship means significant difficulty or expense incurred by the employer or other covered entity.

IV. THE PROCESS OF IDENTIFYING AND PROVIDING A REASONABLE ACCOMMODATION.

 A. When Does the Employer's Duty to Accommodate Arise?

 Because employers and other covered entities are liable for the failure to provide a reasonable accommodation, the first question is typically "When does the duty to accommodate arise?"  This concern is heightened because many disabilities are not apparent to the casual observer, and the ADA also limits the type of information the employer can obtain regarding the disability status of its employees.  Neither the statute nor the regulations specify a point in time at which the duty to accommodate arises, but obviously the employer must know of the disability before it can provide an accommodation for it.  The courts have adopted a general rule that places the initial duty on the employee with the disability.  This rule apparently is derived from a bit of interpretive guidance that suggests the employer's duty to accommodate arises when a qualified individual with a disability makes a request for a reasonable accommodation.  See e.g., Jovanovic v. In-Sink-Erator Div. of Emerson Electric Co., 10 AD Cas. (BNA) 193 (7th Cir. 2000).  In Jovanovic, as in many other cases, the court held that as a general rule an employee with a disability must request a reasonable accommodation before an employer to be found liable for failure to provide one.

 In Jovanovic, the court found that the employer could not be liable under the ADA for its failure to provide a reasonable because the employee never requested one.  See also, Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999)(People with disabilities generally have the obligation to initiate the interactive process by requesting reasonable accommodation);  Loulseged v. Akzo Nobel Inc., 178 F.3d 731 (5th Cir. 1999) (There is no failure to provide a reasonable accommodation where an employee has ample opportunity to tell an employer that proposed changes in assignments will cause problems because of a disability, but the employee never requests accommodation); Gaston v. Bellingrath Gardens & Home, 8 AD Cas. (BNA) 1862 (11th Cir. 1999)(An employer cannot be held liable for failing to provide a reasonable accommodation if the employee with a disability fails to request one); Mole v. Buckhorn Rubber Prod., 8 AD Cas. (BNA) 1873 (8th Cir. 1999) (An employer cannot be held liable for failing to provide a reasonable accommodation if the employee with a disability fails to request one).  No request, no case.

 B. When a Request for a Reasonable Accommodation by an Employee Is NOT Required.

  1. Employees Not Required to Request a Reasonable Accommodation If  it Would Be a Futile Gesture.

 The general rule requiring the employee to initiate the process of providing a reasonable accommodation is just that: general.  There may be circumstances in which the general rule does not apply and the employee may proceed with their claim that the employer failed to accommodate despite the employee's failure to requesting one.  In Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999), the court acknowledged that generally employees must request an accommodation, but went on to fashion an exception.  In Davoll, the employer adopted a policy and practice of  refusing to reassign employees as a form of reasonable accommodation in any circumstance.  The employer announced and made known to its employees that it was unwilling to accommodate with reassignment.  The court found that the effect of the employer's policy and practice foreclosed the interactive process. The court concluded that in such circumstances the employer may be held liable for failure to provide the accommodation.

 When employees with disabilities know that their employer has a policy prohibiting reassignment or other forms of reasonable accommodation, the law will not require the employees to request a reasonable accommodation because it would be a "futile gesture."  An employee does not have to subject himself to rebuke when the employer has already made known its answer.  In Davoll v. Webb, the court emphasized that an employee's subjective belief about requesting reasonable accommodation is insufficient to relieve him from making a request.  Rather, the court relied on the employees' objective knowledge of Denver's policy refusing to reassign patrol police officers to service positions.  It was not enough for the employee to have a subjective belief that his request for an accommodation would be denied.  Rather, the evidence had to show an objective policy or practice by the employer to reject all requests for accommodation regardless of the circumstances.

  2. Constructive or Equivalent Request for Reasonable Accommodation.

 The general rule that requires an employee to request a reasonable accommodation in order to give rise to the employers duty to accommodate seems to be based on the more fundamental principal that the employer cannot accommodate if it does not know of the need for accommodation.  Therefore the simplest way for the employer to know is for the employee to ask.  Yet there may be circumstances where the employer knows of the need for a reasonable accommodation, but does not offer an accommodation because none was requested. Considering that there is no specific language or "magic words" that an employee must state to make a sufficient request for a reasonable accommodation, an employee may be able to make an effective request for reasonable accommodation without using the term "reasonable accommodation,"  without even proposing a particular adjustment at work, or without even personally communicating the need to the employer.

 If the circumstances indicate that the employer possesses all the information that would ordinarily be contained in a request, then the employer may have the equivalent of a request or and effective request.  An equivalent or effective request exists where the employer received all of the information necessary for it to know that the employee has a disability, that the employee needs an accommodation to enable him to perform the job, and that the employee wants some form of accommodation.

 In Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999), the court found that an effective request had been made, even though the employee did not personal communicate with the employee, and did not say the words: "I request a reasonable accommodation."  The court held that the essential elements to prove a claim for a failure to accommodate are: (1) the employer knew about the individual's disability, (2) the individual requested accommodation or assistance for her disability, (3) the employer did not make a good faith effort to assist the employee in seeking a reasonable accommodation, and (4) a reasonable accommodation exists that would enable the employee to perform the essential functions of her position.

 Regarding the essential element requiring that "the individual requested accommodation or assistance for her disability," found that the employee with a disability does not need to personally communicate the request to the employer.  Indeed, the plaintiff in Taylor made request herself.  The employer, however, had received from various sources all the information that would reasonably cause it to know that the plaintiff was disabled, needed an accommodation, and wanted an accommodation.

 In Taylor, the employer knew that the plaintiff had a severe psychotic episode at work, and was immediately hospitalized.  She was in the hospital for three weeks.  While she was in the hospital, healthcare providers from the hospital contacted the employer and provided information about her condition, including information indicating how her impairment might affect her at work.  The employer knew that the plaintiff was being treated with lithium for her condition.  The plaintiff's son also contacted the employer one week before she was due to return to work and indicated the limits caused by her condition and informed the employer that she would may need assistance or adjustments when she returned to work. The court found that the employer had ample knowledge that the plaintiff might have a disability, that she would need an accommodation at work, and that she wanted such an accommodation.  This information was sufficient to meet the requirements for a valid request for reasonable accommodation.

 There are several important points to be gleaned from Taylor.

a. Third Party Requests for Accommodations.

 First, the request for an accommodation or other information regarding an accommodation does not need to come from the individual with a disability. Third parties can request and provide information regarding accommodations.  Requests made on behalf of the employee is sufficient.  In Taylor, the employer received information from family members and healthcare providers that was sufficient to communicate the existence of a disability, the need for a work related accommodation, and the employee's desire to be accommodated.

b. Specific Name or Diagnosis Not Relevant to a Valid Request for Accommodation.

 Second, the request or other information (even if from third parties) does not need to identify the specific diagnosis or name of the condition that limits or disables the plaintiff.  Obviously, the diagnosis may be a useful and shorthand way of communicating a lot of information.  As long as the employer, however, has sufficient information to know that the employee has a disability and has information sufficient to understand whether and how the employee can be accommodated, the information will be sufficient to amount to a valid request for accommodation.  In Taylor, the fact that the employer knew about the severe episode at work was enough to let them know she had a disability, even though the employer did not know the diagnosis or the complete nature of the condition.

c. Valid Request Does Not Need to Use the Words "Reasonable Accommodation," Nor Does it Have to Specify the Type of Accommodation Needed.

 Third, requesting assistance or providing other information does not need to use the words "reasonable accommodation."  Nor does the request have to specify the type of accommodation needed or desired in order for the request to be a valid and effective request for a reasonable accommodation. As long as the request or other information made by or on behalf of an employee communicates the need for an adjustment in the work environment because of the limitations caused by a disability, the employee has made a valid request.  When a valid and effective request is made,  the employer's duty to accommodate arises.  The specific form of the accommodation can be identified at a later time during the interactive dialogue between employee and employer regarding the nature and scope of the accommodation.

 A request for reasonable accommodation does not need to identify a specific accommodation.  While such information would be helpful, an employer can request it during the interactive process.  Similarly, a request for an accommodation is valid if the request does specify a particular accommodation, but the specified accommodation is later found to be ineffective, impractical or burdensome.

 The key principal is that the employer's duty to accommodate arises when the employee or someone acting on behalf of the employee communicates the need and desire for assistance due to a disability.  The nature of the disability and the nature of the needed accommodation may be determined after the duty arises.

d. The Request Must Be Made to an Appropriate Agent of the Employer.

 In Taylor, the court emphasized that a request for reasonable accommodation does not have to go to an employee's immediate supervisor.  The employer's duty to accommodate arises and the interactive process is triggered when an effective request is received by an "appropriate agent of the employer." In Taylor, the information that constituted an effective request for a reasonable accommodation was communicated to the employer's administrative assistant for personnel, which was an appropriate person who had the authority to address the request.

  3. Employer Not Obligated to Make Affirmative Effort to Learn of Employee's Condition.

 An employer, however, is not obligated to undertake an affirmative effort to seek out information regarding the employee's disability, nor is it obligated to pro-actively formulate new and more effective accommodations.  In Mole v. Buckhorn Rubber Prod., 8 AD Cas. (BNA) 1873 (8th Cir. 1999), the employer provided the plaintiff with several accommodations, including leave and breaks, after learning she had multiple sclerosis.  The employee accepted the accommodations, but never informed the employer that she needed additional accommodations.  The plaintiff's supervisor regularly consulted with the plaintiff regarding on-going problems with job performance.  During these consultations, the employee did not request additional accommodations, nor did she attribute her performance deficiencies to the lack of accommodations.  The employer eventually fired her for performance deficiencies.  The employee contended that the employer "should have known" that additional accommodations were necessary and that the employer "should have made" an affirmative effort to independently learn more about MS and how to accommodate it by reading pamphlets and other information on MS.

 The court rejected this argument, holding that the ADA does not require pro-active intervention by an employer.  The court also rejected the employee's argument that she did request additional accommodations because that request was delivered on the day her termination became effective, which was too late.  Even if the request had been timely, the plaintiff presented no evidence that she could have adequately performed her job with any of the reasonable accommodations she requested.

V. CONCLUSION-EMERGING PRINCIPLES

Remember these basic principals:

(1) To be a reasonable accommodation, the adjustment in the work place must be reasonablly calculated to enable the person with a disability either:

  (a)  to be considered for the position;
  (b) to perform the essential functions; or
  (c) to enjoy equal benefits and privileges.

(2) To be a reasonable accommodation, the adjustment or modification must be effective to achieve one of these three objectives.

(3) The employee must make an effective request for a reasonable accommodation in order to give rise to the employer's duty to provide a reasonable accommodation.

(4) An effective request must be communicated to an appropriate person within the employer and inform him that the employee has a disability, that he has a need for an accommodation, and that he desires and accommodation.

(5) An effective request for a reasonable accommodation can be made by the employee directly, or indirectly through a third party.

(6) A request can be effective to give rise to the employer's duty to provide a reasonable accommodation, even if the employee does not identify by name the diagnosis or full extent of the disability.  (However, the employee may have to disclose more complete information after the duty to accommodate arises).

(7) A request can be effective to give rise to the employer's duty to provide a reasonable accommodation, even if the request does not identify a specific accommodation desired.

(8) An employer is not obligated to independently and pro-actively learn about the condition to recommend or anticipate new or additional accommodations.

Next Month:
The Interactive Dialogue Between Employer and Employee.



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