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CHARGES OF DISABILITY DISCRIMINATION under the Americans with Disabilities Act (ADA) were filed 15,346 times last year with the Equal Employment Opportunity Commission (EEOC). Many of those charges were based on an employer’s failure to reasonably accommodate the disabled employee.

An employer who fails to provide reasonable accommodation to a disabled individual can be liable for damages, including the payment of back pay and benefits, compensatory damages for “pain and suffering,” and punitive damages. Though the amount of compensatory and punitive damages that a successful plaintiff can recover is currently capped at $300,000 for large employers and $50,000 for small employers, the impact of an adverse jury verdict can be significant. Even if an employer has employment-practice liability insurance, that insurance may not cover liability for punitive damages for intentional acts of discrimination. Without insurance, the loss would come right out of the employer’s bottom line.

The problem for any employer faced with the task of accommodating a particular disabled worker is knowing when the legal duty to provide the required reasonable accommodation has been met. If the employer is wrong in the eyes of the jury and has not done enough to accommodate the worker’s condition, then the very real possibility of a large damage award exists. Companies need to fully understand the law to ensure compliance and avoid becoming one of the organizations facing costly charges of discrimination.

Threshold

It is discrimination under the ADA if an employer does not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee with a disability. Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified employee with a disability to perform the essential functions of the job or to enjoy the benefits and privileges of employment equal to those enjoyed by other employees.

Accommodation is not required, however, if it would cause an employer undue hardship. Whether an accommodation represents an undue hardship is based on a case-by-case assessment. Accommodation is also not required if the employee presents a direct threat to the workplace, other employees, or himself. (More on these points later.)

Flexible Interaction

Meeting the reasonable accommodation obligation can be tricky. The federal regulations implementing the ADA state that to determine the appropriate accommodation, it may be necessary for the employer to initiate an informal, interactive process with the employee. According to the regulations, the appropriate reasonable accommodation is best determined through a flexible interactive process that involves both the employer and the employee. The process requires a great deal of communication.

The interactive process is not mandatory. Rather, it is simply one means of determining what type of reasonable accommodations might allow the disabled employee to perform the essential functions of the job. But if reasonable accommodation was not provided and the employee had a reasonable suggestion that was never considered, then the employer will be hard pressed to defend its action. Thus, working with the employee interactively is advisable, if not required.

If an accommodation is found, the employee gets to remain in the position and the employer doesn’t have the expense of going through the job hiring process again to find a replacement—a win-win for both parties. But if good-faith efforts fail to identify a reasonable accommodation and termination occurs, the employer can point to its interactive efforts to defend against a charge of discrimination that might follow.

In many instances, both the disability and the type of accommodation required will be obvious, and there will be no need to engage in a drawn-out process of trying to determine an accommodation. But where the accommodation is not so obvious, the interactive process is crucial.

In those cases, the dialogue between the employer and the employee can reveal creative solutions that neither may have considered before. Importantly, the interactive process may also establish that there truly is no accommodation that would be reasonable in the circumstances.

Good-Faith Effort

The same law that allows disabled former employees to sue in jury trials for compensatory and punitive damages also provides employers with an extremely important, yet simple, way to avoid that liability altogether. By demonstrating that it has consulted with the disabled person in a good-faith effort to identify and make a reasonable accommodation, the employer can reduce its financial exposure significantly. Punitive and compensatory damages cannot be awarded if the employer can show that it has engaged in a good-faith process.

The good-faith process may not always identify an effective reasonable accommodation. If that happens, employment termination is usually the only alternative. If the disabled employee fully participates in that process from the beginning, chances are that the employee will clearly understand the reasons why appropriate accommodations could not be found. The employee who actively participated in the process will not be as likely to challenge the employer’s decision by filing a charge of discrimination.

How it Works

Once the employee has requested an accommodation, the employer should follow a four-step problem-solving approach, being careful to document the process for each step along the way. In documenting these steps, it is crucial that all efforts to brainstorm the problem be recorded. It is important to document all ideas—even those that clearly are not feasible—thereby showing that all avenues were explored and ultimately exhausted.

The EEOC has provided some guidance to help employers through this interactive process. The process steps are: analyze job function, determine precise limitations of the person asking for the accommodation, identify potential accommodations, and select an effective accommodation.

Analyze job functions. The first step, analyzing job functions, involves an individual assessment of the particular job duties at issue.

Determine limitations. In the second step, employers should consult with the individual to determine the specific physical disability or the limitations of the individual requesting the accommodation and exactly how the individual’s performance is limited. The precise barrier to the employment opportunity should be specifically identified to determine the accommodation that could alleviate or remove the barrier.

Identify accommodations. In the third step, employers should consult with the disabled individual to determine what might be an effective accommodation. The disabled employee is often the best source of suggestions for the types of accommodations that will allow the job to be done without undue hardship for the employer. If accommodations cannot be identified after personal consultation, the company should consider asking for assistance from agencies and advocacy groups with ADA expertise.

For example, employers should always consider contacting the Job Accommodation Network if accommodations can’t be easily identified. The network provides free consultant services through the U.S. Department of Labor. The network provides employers with information and individualized assistance in identifying workplace accommodations based on the functions of the job and the limitations of the individual. It would be difficult for an employer to argue that it acted in good faith if the Job Accommodation Network had not been contacted for this free advice.

Select an accommodation. The final step is for employers to select and implement the accommodation that is most appropriate for both the employee and the employer. Employers should be aware that they must consider the individual’s preference but that an employee’s expressed preference will not be controlling. The employer need only choose an effective, reasonable accommodation, not the one considered best by the employee.

Documentation

Documenting the steps of the process can help chart a course and strategy for finding a reasonable accommodation. A reasonable accommodation worksheet can serve that function.

The worksheet lays out the four steps of the interactive process. Under the job description section, it should allow space for employees to add items to their job descriptions, thus giving the employer a concise set of functions to consider.

There should be a place on the worksheet where employees can detail what job functions they cannot perform and what barriers exist that prevent them from performing those functions. The next section on the worksheet is where employees can identify potential accommodations.

After reviewing the worksheet, employers can evaluate the suggested accommodations and give an opinion on the same sheet. This keeps all of the information regarding the accommodation in one place.

The worksheet is especially valuable in that it records how the company directly involved the employee. This direct involvement establishes that the interactive process was indeed pursued.

The record should identify agreements as well as disagreements over the nature of the job functions and the impairments that require accommodation. It should be a comprehensive record of the employee’s ideas for a solution and all of the alternative means of accommodation identified during the process. If a challenge to the employer’s efforts to accommodate is made later, the worksheet can serve as “Exhibit A” in the employer’s defense.

Employee Resistance

Employers must always make an effort to find an accommodation. If they do not, they could face liability. However, if the employee resists participating in the process and causes negotiations to break down, the courts have held that the employee will not be entitled to any recovery.

For example, in a recent case (Allen v. Pacific Bell, U.S. Court of Appeals for the Ninth Circuit, 2003), Clarence Allen, a telephone services technician, suffered a back injury that made it impossible for him to perform his job, which required climbing telephone poles and ladders. Allen’s employer, Pacific Bell, requested that Allen take several tests, such as a typing test, so that he could be placed in another job within the company. Allen failed to take the test, no other job could be found, and he was terminated.

Allen sued his former employer for discrimination under the ADA. The court ruled that Allen failed to engage in the interactive process started by the company. Because Allen did not participate, he had no right to expect the company to pursue further accommodation. In its written opinion of the case, the court noted that “when Allen did not appear for the keyboard test, he lost all further rights to additional accommodation.”

In another instance, one of the author’s clients asked for advice on accommodating a secretary who had suffered from back problems and a withered left arm since birth. She had been a good worker for years, but soon after several of her coworkers were issued new desk chairs, she claimed that she, too, needed an orthopedic chair as an accommodation to her condition.

Up until that time her chair had not been a problem for her. The chair she requested was to be just like the chair the others had been issued. All of the new chairs purchased by the company had already been given out, so that none was available as an extra and, in any event, her coworkers’ chairs were not orthopedic chairs.

The client explained the situation to the employee, but she would not listen. She wanted a new chair just like the others. The client consulted an occupational therapist, who met with the secretary and offered alternative solutions. The therapist recommended a lumbar support pillow, a foot rest, and a lowered workstation.

The secretary would not be swayed. She insisted on a new chair and refused to consider anything else. She then claimed her condition had worsened and requested a leave of absence, which the company granted.

On the day of her return to work, the secretary saw that her old chair was still at her desk, and she resigned on the spot. Within days she filed a lawsuit against her employer, claiming that the company had failed to reasonably accommodate her.

The company prevailed in court. The judge ruled that the employee had caused the breakdown in the interactive process by refusing to consider any of the company’s alternative accommodations.

Continuing Duty

Just as employee actions can affect the outcome, an employer that causes the breakdown in the process will likely be found liable. The best policy is for the employer to be patient, flexible, and reasonable in dealing with employees. Companies should not risk sinking a good defense by causing—or appearing to cause—a breakdown in the interactive process.

For example, in one case (Humphrey v. Memorial Hospitals Association, U.S. Court of Appeals for the Ninth Circuit, No. 98-15404, 2001), a medical transcriptionist, Carolyn Humphrey, who suffered from obsessive-compulsive disorder had difficulty arriving to work on time. After obtaining an affirmation of Humphrey’s diagnosis, her employer offered a flexible-start-time arrangement under which Humphrey could arrive at work at any time within the 24 hours she was scheduled to work.

The accommodation was unsuccessful. Though her work was exceptional, Humphrey continued to be absent on a regular basis. After several months, Humphrey requested that she be able to work at home as an accommodation for her condition. Humphrey’s request was denied, via e-mail.

No alternative accommodation or follow-up discussion was mentioned and Humphrey was terminated several weeks later. Humphrey filed a lawsuit in federal court against her employer, claiming that the company failed to continue the interactive process and work with her to find suitable accommodation.

The U.S. District Court for the Eastern District of California granted the employer summary judgment—a hearing based on the facts of a case without a trial. The court found that the employer had satisfied its duty to reasonably accommodate Humphrey’s disability. Humphrey appealed the decision.

The U.S. Court of Appeals for the Ninth Circuit overturned the decision, finding that the company had an “affirmative duty under the ADA to explore further methods of accommodation before terminating Humphrey.”

The court ruled that accommodation is a continuing duty and is not exhausted by one effort. (The company appealed to the U.S. Supreme Court, which declined to hear the case.)

Undue Hardship

An employer need not meet the accommodation request of a disabled employee if that accommodation presents an undue hardship. To establish an undue hardship, the employer must present evidence that meeting the accommodation request would significantly affect its business operations.

For example, an accommodation might cause an undue hardship under the ADA because it was prohibitively costly. However, the employer has to show that the cost is excessive compared with its overall budget. It cannot simply compare the cost of an accommodation to the salary of the person in question.

To determine whether an accommodation is an undue hardship, companies should consider the nature and the net cost of the accommodation, the employer’s financial resources, the type of operations the company oversees, and the effect of the proposed accommodation on the employer’s expenses and resources.

For example, in one case (Siekaniec v. Columbia Gas Company, U.S. Court of Appeals for the Sixth Circuit, 2002), the court ruled that finding an accommodation for an employee with chronic headaches posed an undue hardship to the organization, because the employee’s job, handling emergency and fire calls for a gas company, was safety sensitive and the solution—bringing in another worker whenever the employee was absent or ill—presented problems.

The effect of an accommodation on the work force might constitute an undue hardship even if it is not expensive. Say, for example, that a crane operator, due to his disability, requests an adjustment in his work schedule so that he starts work at 8:00 a.m. rather than 7:00 a.m., and finishes one hour later in the evening. The crane operator works with three other employees, who cannot perform their jobs without the crane operator.

As a result, if the employer grants this requested accommodation, it would have to require the other three workers to adjust their hours, find other work for them to do, or have the workers do nothing. The

ADA does not require the employer to take any of these actions, because they all significantly disrupt the operations of the business.

Thus, the employer can deny the requested accommodation, but should discuss with the employee if there are other possible accommodations that would not result in undue hardship. When one accommodation will not work, an employer still is required to evaluate the alternatives to determine whether an effective accommodation exists.

Although a negative effect on the morale of other employees is not an undue hardship, an accommodation that inhibits the ability of employees to do their jobs is an undue hardship. The EEOC has stated that if modifying one employee’s schedule as a reasonable accommodation would so overburden another employee that he or she would not be able to handle his or her own duties, the employer could establish undue hardship. Disruption, however, must be established on the basis of objective facts, not on the basis of employees’ unfounded fears and prejudices.

Direct Threat

Under the ADA, employers need not accommodate a person with a disability if that person poses a direct threat to the health or safety of others. This exception also applies if the individual is a threat to him or herself.

For example, in Echazabal v. Chevron USA, Inc. (U.S. Supreme Court, 2002), Mario Echazabal had performed contract work for Chevron in its oil refineries for 20 years. In 1992, Echazabal applied directly to Chevron for a job entailing the same duties. After determining that Echazabal was qualified, Chevron offered him a job pending the results of a physical examination.

During the exam, doctors determined that Echazabal had a liver dysfunction and concluded that he could be injured by exposure to solvents and chemicals present at the plant. Chevron withdrew its job offer.

In 1995, Echazabal again applied for a job with Chevron. Again, Chevron made a conditional offer but withdrew it on the grounds that Echazabal’s liver could be damaged through his work at the refinery. Chevron also requested that Echazabal be dismissed from his contract work for Chevron. As a result, Echazabal was removed from his job at the refinery.

Echazabal sued Chevron, claiming discrimination under the ADA. Attorneys for Chevron used the direct-threat exception to the ADA as a defense. In this case, the defendants argued that they were justified in refusing Echazabal’s employment because he posed a direct threat to his own health if employed in the Chevron refinery.

The U.S. Court of Appeals for the Ninth Circuit found in favor of Echazabal. The appellate court found that the direct-threat exception could not be applied to threats against the health or safety of the employee in question.

Chevron appealed to the U.S. Supreme Court, which found in its favor. In its ruling, the Court noted that, in this case, the regulations allowing an employer to screen out a potential worker with a disability because of risks to the worker’s own health or safety expanded on an issue not fully covered by the ADA. The Court concluded that the appellate court’s ruling was unreasonable, because Congress’s intent in enacting the ADA could not have been to harm the very employees that the act sought to protect.

When determining whether a person with a disability is a direct threat, companies must be careful to consider the evolving EEOC guidance and relevant case law, or they could find themselves unwittingly violating the ADA. For example, in one case (Kapche v. City of San Antonio, U.S. Court of Appeals for the Fifth Circuit, 2002), the San Antonio Police Department refused to hire Jeff Kapche because he had insulin-dependent diabetes.

The department based its decision on several court cases from the early 1990s that specified the illness as a direct threat for certain jobs—such as those that required driving. Kapche sued the department claiming that his diabetes was under control and that he posed no danger to others.

The U.S. Court of Appeals for the Fifth Circuit found in favor of Kapche. The court ruled that employers must base their decisions on an examination of each individual case, not on a broad assessment. The court found that Kapche was in good health and that diabetes medication had improved over the past decade, making the illness less of a threat.

Though often complicated, the good-faith interactive process can work. For example, one of the author’s clients faced a difficult situation involving a long-term employee who suffered from a degenerative disc condition.

The employee, sensing that her job was in jeopardy, retained an attorney, who warned the company that the employee was aware of her rights as a disabled individual. Wanting to do the right thing, the employer involved the worker in numerous discussions concerning her present job and the other jobs within the facility.

After a series of meetings with the employee over the course of two weeks, the company decided that there were no accommodations that could allow her to continue working. Back braces, lifting aids, and modified rest periods were all considered, but none of the solutions were sufficient to allow the employee to keep working at her current job.

Because the employee was part of the process, she saw firsthand that her employer had tried to accommodate her. She also saw that she would be unable to perform any available jobs, including her own. She was placed on a leave of absence in the hope that her condition would improve. It did not, and she was subsequently terminated.

Soon thereafter, the author received a letter from the former employee’s attorney. Expecting a notice of the filing of a discrimination charge, the author was pleased to find that instead of an EEOC charge, the employer was being complimented for the way it handled the situation.

The attorney wrote: “I recently had the opportunity to speak with my client regarding her situation at your client’s company and she informs me that her predicament has been resolved to her satisfaction. After talking with her, it is apparent to me that my involvement in this case is no longer needed. I wish to take this opportunity to thank you and your client for your prompt attention and for the consideration given to my client in reaching a fair resolution of this case.”

This story illustrates the effectiveness of involving the disabled employee in the good-faith problem solving process. It ended with a satisfactory result for everyone involved. The process of involving the disabled employee in the search for an accommodation not only avoided a lawsuit but also had the more important effect of enhancing the client’s reputation for good faith and fair dealing with all of its employees.

Stephen W. Lyman is an attorney with Hall, Render, Killian, Heath & Lyman with offices in Indianapolis, Louisville, Milwaukee, and Troy, Michigan.