Disability Law Index - Employment: Reasonable Accommodation

Statutes:

42 U.S.C. § 12112(b) - Discrimination - Construction

As used in subsection (a) of this section, the term ''discriminate'' includes...

(5)

(A) 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; or

(B) denying 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. § 12111(9) - Reasonable accommodation

The term reasonable accommodation may include -

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) 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. § 12201(h) - Construction - Reasonable accommodations and modifications

A covered entity under subchapter I, a public entity under subchapter II, and any person who owns, leases (or leases to), or operates a place of public accommodation under subchapter III, need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets the definition of disability in section 12102(1) solely under subparagraph (C) of such section.

Regulations:

29 C.F.R. § 1630.9 - Not making reasonable accommodation

(a) It is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.

(b) It is unlawful for a covered entity to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such covered entity to make reasonable accommodation to such individual's physical or mental impairments.

(c) A covered entity shall not be excused from the requirements of this part because of any failure to receive technical assistance authorized by section 507 of the ADA, including any failure in the development or dissemination of any technical assistance manual authorized by that Act.

(d) A individual with a disability is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified.

(e) A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the “actual disability” prong (§ 1630.2(g)(1)(i)), or “record of” prong (§ 1630.2(g)(1)(ii)), but is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong (§ 1630.2(g)(1)(iii)).

 

29 C.F.R. § 1630.2(o) - Reasonable accommodation

(1) 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.

(2) Reasonable accommodation may include but is not limited to:

(i) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(ii) Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications 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.

(3) To determine the appropriate reasonable accommodation it may be necessary for the covered entity 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.

Case Law:

US Airways, Inc. v Barnett, 535 U.S. 391 (2002).

  • Showing that a requested reassignment violated an established seniority system is sufficient to make the accommodation request unreasonable for the purposes of the ADA...
  • The plaintiff could still show special circumstances that would make the exception "reasonable". For example (this list is not exhaustive):
    • the employer, having retained the right to change the seniority system unilaterally, exercises that right fairly frequently, reducing employee expectations that the system will be followed to the point where one more departure, needed to accommodate an individual with a disability, will not likely make a difference.
    • The plaintiff might show that the system already contains exceptions such that, in the circumstances, one further exception is unlikely to matter.

Dilley v. Supervalu, Inc. (10th Cir. July 15, 2002).

  • Interpreted Barnett that it is the direct violation of a seniority system that is unreasonable.
  • A potential violation of the seniority system in the future does not make make the requested accommodation unreasonable.

Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809 (7th Cir. 2004).

  • "Although there may be cases where an attorney or a vocational expert would be of considerable assistance in the interactive process, there is no requirement that an attorney and/or vocational expert need to participate. The ADA envisions no more than 'a flexible, interactive process by which the employer and employee determine the appropriate reasonable accommodation'."

Shapiro v. Town of Lakewood, 292 F.3d 356 (3rd Cir. 2002).

  • Employer had failed to engage in the interactive process when employee requested a job transfer as a reasonable accommodation because he didn't follow a neutral policy concerning transfers.
  • Interpreted Barnett as prescribing a two-step approach for cases in which a job reassignment accommodation request violates an employer's disability-neutral rule.
  • First step requires employee to show that the accommodation is a type that is reasonable in the run of cases.
  • Second step varies. If the accommodation is shown to be a type that reasonable in the run of cases, the burden shifts to the employer to show that granting the accommodation would impose an undue hardship under the particular circumstances of the case. If the accommodation is not reasonable in the run of cases, the employee can show that special circumstances exist for the accommodation to be reasonable.

Gaul v. Lucent Tech., Inc., 134 F.3d 576 (3rd Cir. 1998).

  • An accommodation request to be transferred away from individuals causing an employee prolonged and inordinate stress (a stress-free work environment) was unreasonable as a matter of law under the ADA.
  • The proposed accommodation would impose a wholly impractical obligation on any employer. Only temporary compliance could be achieved because compliance would depend entirely on the employee's stress level at any given moment.
  • Proposed accommodation would also impose extraordinary administrative burdens to the employer.
  • By asking to be transferred away from individuals who cause prolonged and inordinate stress, the plaintiff is essentially asking the court to establish the conditions of his employment, most notably, with whom he will work. Nothing in the ADA allows the court to "interfere with personnel decisions within an organizational hierarchy."

Newberry v. E. Texas State Univ., 161 F.3d 276 (5th Cir. 1998).

  • "an employer need not provide reasonable accommodation to an employee who does not suffer from a substantially limiting impairment merely because the employer thinks the employee has such an impairment."

Weber v. Strippit, Inc., 186 F.3d 907 (8th Cir. 1999).

  • “regarded as” disabled plaintiffs are not entitled to reasonable accommodations.

E.E.O.C. v. Federal Express Corp., 513 F.3d 360 (4th Cir. 2008).

  • Employer's failure to accommodate in failing to provide an interpreter for deaf cargo handler justified an award of punitive damages.Higher management officials had acted reprehensibly with respect to the employee's accommodations needs.
    • Their failure and refusal to provide accommodations did not result from isolated incidents.
    • Employee's disability was always known by his supervisors.
    • He had made repeated requests for accommodations.
    • Supervisors were plainly indifferent to fact that their failure to accommodate employee's disability could jeopardize his safety and potentially implicate safety of others.
    • Supervisors were familiar with the mandate of the ADA and perceived the risk that their conduct was unlawful.
  • Mere existence of an ADA compliance policy will not alone insulate an employer from punitive damages liability. An employer maintaining such a compliance policy must also take affirmative steps to ensure its implementation.

Articles:

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA 2002. This Enforcement Guidance was updated by the EEOC to reflect the Barnett decision.

EEOC: Small Employers and Reasonable Accommodation
This guide answers some of the key questions facing small businesses in connection with reasonable accommodations. It explains the obligations of both employers and individuals with disabilities, and reviews the limits on how far employers must go in providing reasonable accommodations

Human Resources E-Bulletin: Responsibilities of Employers and Employees in the "Reasonable Accommodation Process" - Released February 2000

Legal E-Bulletin: US Airways v. Barnett - Released May 2002.

Reasonable Accommodations for People with Psychiatric Disabilities:
An On-line Resource for Employers and Educators - Discusses the types of accommodations available for people with psychiactric disabilities in employment and education.