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The ADA was amended substantially in 2009.  See prior discussion here.  With the new ADA in place, disability cases will be more about the accommodation process and less about whether a person is disabled.  Workplace Prof discusses a case that sheds some light on the accommodation process.  An employee seeking accommodation must present his/her concerns to the employer.  The employer is then required to respond by either providing the accommodation or offering alternatives.  This is known as the "interactive process."  

Some employees, inspired by some limited knowledge of the law, then argue with the employer and essentially refuse particular accommodations.  The employer is not required to provide the requested accommodation.  It is only required to provide an accommodation that meets the employee's need.  In Gratzi v. Office of Chief Judges, 601 F.3d 674 (7th Cir. 2010), the employee was a court reporter who had an incontinence problem.  She needed a nearby bathroom as an accommodation. She needed to get to a restroom on a moment's notice.  But, her position was reorganized into a pool position in which she no longer was assigned to a particular worksite.  There was no reason to believe this reorganization was motivated by discriminatory intent. 

The employer suggested a number of possible accommodations, all of which were rejected by Mr. Gratzi.  She insisted on reinstatement to her previous position.  Reinstatement to her previous position meant she would be assigned to one particular worksite.  The court reporter did not seek her doctor's advice regarding some of these proposed and then rejected accommodations.  She simply rejected them outright.  The appellate court found in favor of the employer.  The plaintiff, did not, said the court, explain why the offered suggestions would not work.  She did not explain why these alternatives would not allow her to get to a restroom within five minutes, as she needed.  

Some of the alternatives would have required Ms. Gratzi to raise her hand for a break.  She argued that this would cause her embarrassment, possible resentment by other court reporters who would have to cover for her, and would disrupt court proceedings.  But, as the 7th Circuit said, this was a detriment more to her employer than to the employee.  The court felt she did not do enough to reach an accommodation.   A few employees have come to see me lately expressing their resentment at the employer's apparent unwillingness to provide the requested accommodation.  But, the law does not require the employer to provide you the accommodation you want.  It only requires the employer to provide an accommodation that meets your medical needs.  

As Workplace Prof points out, the employee's outright rejection of several alternatives made her an unsympathetic plaintiff.  Sympathy does count in litigation.  That five minutes of feeling good when you tell the manager "no" can cause long term pain and regret.  It would serve any employee much better if they articulate some objective reason why an alternative will not work.  Even better, check with your doctor before responding to the employer's offer. 

Note that the employer in Gratzi was allowed to reorganize in ways that added to the employee's difficulties, so long as the reorganization was done without discriminatory intent.  

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 Fitness for duty exams are not popular with the workforce.  They can be very stigmatizing.  But, employers want to know if an employee has issues that could affect business.  Most caselaw says fitness for duty exams for unspecified reasons are not justified - they are perceived s a backdoor to discriminate based on disability.  But, the 9h Circuit found in Brownfield v. City of Yakima that sometimes they are appropiate.  See decision.  In this case, a police officer exhibited erratic behavior a few years after he sustained a head injury.  He was complaining over a period of years about a supervisor who Brownfield believed was keeping him from  promotion.  After exhibiting some erratic behavior, his employer required him to see a doctor and provide a report.  Brownfield cooperated at first and then refused to follow through.  The first doctor did find a mental diagnosis.  

The court found that in a workplace where the employer is engaged in dangerous work, preventive fitness for duty exams might be appropriate where there is a business necessity.  The court cautioned that they should not be used as a means to harass an employee or to fish for non-work related medical issues.  The business necessity standard is "quite high" and should not be confused with mere expediency, said the court.  The court then concluded: 

         "Nevertheless, we hold that the business necessity standard
         may be met even before an employee’s work performance
         declines if the employer is faced with significant evidence
         that could cause a reasonable person to inquire as to whether
         an employee is still capable of performing his job. An employee’s
          behavior cannot be merely annoying or inefficient to
         justify an examination; rather, there must be genuine
         reason to doubt whether that employee can perform
         job-related functions."

This ruling may not provide the clearest guidance, but it is a start.    

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How much accommodation is enough?  There is surprisingly little caselaw on the subject.  Most issues arising under the old ADA concerned whether a person was truly a person with disability.Now that the ADA hs been substantially amended, we will surely start seeing more accommodation issues.  In EEOC v. UPS Supply Chain Solutions, we see a case addressing the issue of how much accommodation is "reasonable."  In this case, the employee had been deaf since birth.  His first and primary language was American Sign Language.  He reads and writes at the 4th grade level.  That is not unusual for people who have been deaf since birth.  Many ASL signs do not correlate to written words, and vice versa.  

In this case, UPS used an ASL translator sometimes but often relied on written communication. When the employee would not know a written word, they would tell him to look it up in the dictionary.  When that did not help, UPS provided nothing further.  The employer held weekly and monthly meetings - the employer relied on written agendas, notes and emails to convey the information in these meetings to the employee, Mauricio Centeno.  The company refused to provide an interpreter for meetings that lasted less than two hours.  That level of accommodation is not enough, according to regulation.  Lack of a translator at key meetings is the same as no translator at all.  Centeno said he could not understand what was in some of the written communications.  UPS would not hire a translator for the weekly and monthly meetings and trainings.  

The EEOC advised Centeno that he did not need to attend meetings without an interpreter. Centeno missed some meetings.  The employer then told him he had to attend all meetings.  Later, he was counseled in writing for his behavior in the lunch room.  The EEOC later filed suit based on the employer's failure to accommodate. 

The 9th Circuit reversed the summary judgment in favor of the employer. The appellate court said at the least, there is a fact question whether this accommodation was "reasonable."  The employer never claimed the obvious defense that the translator was too expensive.  Translators in the San Antonio area charge anywhere from $75-100 per hour.  The appellate court wrote:

“In summary, an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers, but an employer cannot satisfy its obligations under the ADA by providing an ineffective modification. Where, as here, there is a disputed issue of fact regarding whether the modifications the employer selected were effective, and where the trier of fact could reasonably conclude that the employer was aware or should have been aware that those modifications were not effective, summary judgment is not appropriate.

See decision.  Frankly, I am surprised the lower court granted summary judgment.  As Workplace Prof says, this is one the employer should settle.  If the employer wishes to fire or discipline an employee for violating policy, the employer must make certain the employee understood that policy. 

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 A recent Third Circuit Court of Appeals decision finds that a change in shifts is indeed an accommodation which an employer may have to provide in certain circumstances.  In Colwell v. Rite Aid, the employee had no vision in one eye due to glaucoma.  So, she could not drive at night.  She asked to change shifts from the night shift to the day shift.  Rite Aid refused, because "it would not be fair to other employees."  A doctor provided a note also stating that she should not work at night.  But, it was to no avail.  Rite Aid refused.  The employee relied on family members to pick her up from work after 5:00 pm.  But, after a year of frustration and being treated by managers and co-workers as a pariah, she quit.

On appeal, the employer argued that it was not responsible for how an employee arrives to work, only for what occurs once the employee does arrive.  The federal Third Circuit rejected that argument.  The court found that the employer should have allowed the shift change.  The Americans with Disabilities Act expressly provides that one possible accommodation is "job restructuring, part-time or modified work schedules."  

As the Third Circuit noted, there are many cases finding that an employer is indeed not responsible for how an employee gets to work.  But, this requested accommodation was different.  This requested accommodation concerned more the conditions of employment once the employee was actually at work.  The employer did indeed control whether the employee would work at night or during the day.  

The employer must engage in an "interactive process" to arrive at a solution to the accommodation request.  Rite Aid had "flatly" rejected Colwell's requests for an accommodation.  And, later, Colwell resigned before any further meetings could occur.  Under the facts here, the jury could conclude that Colwell or Rite Aid failed to engage sincerely in the interactive process.  But, that decision was a fact question.  Facts questions should be decided by the jury, not a judge.  

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 The Fifth Circuit Court of Appeals issued a good decision on reasonable accommodation recently.  EEOC v. Chevron Phillips Chemical Co., LLP.   One of the few decisions to plumb the depths of acommodation and how the interactive process should work.  The lower court granted summary judgment in favor of the employer.  That is, the court found that the plaintiff had no case.  A summary judgment is a term of art meaning quick judgment, one without the need for a trial.  The lower court found that the initial request for accommodation, a simple release note from the doctor was *not* a request for accommodation.  Because, the release note did not offer a possible accommodation.  

But, the Fifth Circuit reversed this finding.  The law does not require magic words, said the higher court, when asking for an accommodation.  The employer was already aware of the employee's disability.   So, that knowledge plus this release note is enough to indicate the need for accommodation.  The employer was, in effect, on notice regarding the need for acommodation. 

An employee seeking accommodation is not required to come up with the solution on her own.  So, yes, the release note from the doctor was enough in this case to serve as a request for accommodation.    Once the employee presents a request for an accommodation, then the employer *must* engage in an interactive process to arrive at a solution.  Here, the employer simply said, no, "this isn't going to work."  Such a statement shows the employer was refusing to engage in the interactive process, said the higher court.   That refusal violates the Americans with Disabilities Act.  Both the employee and employer must talk about the requested accommodation and arrive at a solution together.  

 So, for these reasons, the higher court found that summary judgment was not appropriate and the plaintiff should have a trial on these issues.  As Mike Maslanka has said, the future issues in ADA cases will probably lie in the accommodation process, or lack of such a process.  

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