Courts Address ADA Reasonable Accommodations and the Interactive Process

All employers are aware of their duty to provide a reasonable accommodation to qualified individuals with a disability who need such an accommodation to perform the essential functions of their position. Knowing about this obligation, however, is far simpler than understanding when the duty to provide such an accommodation arises, or how to engage in a conversation about the accommodation with the employee. Two recent court decisions shed light on these difficult issues, and underscore their complexity.

The Cases

EEOC v. Kohl’s Department Stores, Inc.

In one case, EEOC v. Kohl’s Department Stores, Inc.,[1] decided by the First Circuit Court of Appeals, a full-time sales associate at Kohl’s felt she could no longer physically handle the unpredictable shifts that Kohl’s required of all full-time associates. Pamela Manning, the full-time associate, informed her supervisor that working such erratic shifts was aggravating her diabetes and endangering her health and that she needed a change. Ms. Manning’s supervisor told her that she would need a doctor’s note in order to better assess the situation. Ms. Manning later provided her supervisor with a note from her doctor that made clear that the stress Ms. Manning experienced due to working erratic hours adversely affected her high glucose levels, and the doctor requested that her schedule be changed to a “predictable day shift…so that Manning could better manage her stress, glucose level, and insulin therapy.”       

The supervisor provided this doctor’s note to a Kohl’s Human Resources Department representative who decided that, while being a full-time associate required working nights and weekends (and this could not change), Kohl’s could remove the requirement that full-time associates work swing shifts, and it could work to help Ms. Manning ensure that she took the breaks that she was provided. When the supervisor met with Ms. Manning, she told Ms. Manning that she would have to continue to work nights and weekends. The supervisor did not mention, however, that Kohl’s was willing to remove swing shifts. Ms. Manning got upset, walked out of the meeting, and said that she quit. The supervisor followed her, asked her to reconsider her decision, and called her days later to ask her again to rethink her resignation and to consider alternative accommodations for both part-time or full-time associate work. Ms. Manning did not discuss the situation further with her supervisor or anyone at Kohl’s. She filed a complaint with the EEOC claiming that Kohl’s failed to reasonably accommodate her in violation of the Americans with Disabilities Act (ADA).[2]

In order to establish disability discrimination under the ADA, a plaintiff must show three things:  (1) that the employee is disabled within the meaning of the ADA; (2) that the employee was able to perform the essential functions of the job with or without a reasonable accommodation; and (3) that the employer, despite knowing of the employee’s disability, did not reasonably accommodate it. This case hinged on the third part of this test, namely, did Kohl’s fail to reasonably accommodate Ms. Manning’s request. 

In order to meet its obligations to reasonably accommodate an employee, an employer must know that the employee suffers from a disability that relates to their ability to do their job. In this case, Kohl’s was aware, through the note from Ms. Manning’s doctor, that Ms. Manning had diabetes and that the schedule required of all full-time associates adversely affected her because of her disability. The First Circuit held that, once an employer learns of the disability, for the purposes of discussing reasonable accommodations, the process must be interactive, meaning that there must be bilateral cooperation and communication. Importantly, the employee must cooperate in the process, and the employer cannot be held liable under the ADA for failure to provide a reasonable accommodation if the employee does not cooperate.

In this case, while the employer did not offer Ms. Manning its accommodation of no swing shifts, it did continue to offer to discuss with her some potential accommodations other than the one she requested of working just day shifts. The First Circuit found that the two follow-up efforts that the supervisor made asking Ms. Manning to reconsider her resignation met the employer’s obligation to try to accommodate the employee. And, the court also held that Ms. Manning’s refusal to discuss potential accommodations with her supervisor on the date of her meeting or during the supervisor’s follow-up attempts demonstrated that Ms. Manning failed to meet her obligations under the ADA.  Thus, the court granted summary judgment in favor of Kohl’s, finding that it could not be liable for failing to accommodate Ms. Manning because Ms. Manning did not cooperate.

Bellerose v. SAU #39

In Bellerose v. SAU #39,[3] a federal district court in New Hampshire granted summary judgment for a custodian whose employment was terminated by a New Hampshire school.[4]  Mark Bellerose began as a custodian for the school in 2006 and received a strong evaluation in 2007. However, Mr. Bellerose received letters of warning for failing to follow the chain of command, an additional letter for failing to remove snow, and a final warning for using profanity with a hostile tone while helping a citizen unload furniture at the school.  Mr. Bellerose denied engaging in the activities that resulted in his discipline and, in fact, had two witnesses who stated that he did not use profanity when helping a citizen move furniture. More importantly, after the discipline, Mr. Bellerose gave the principal four pages of information describing the symptoms of Asperger’s Disorder. The principal asked Mr. Bellerose:  “Is this you?” to which Mr. Bellerose replied:  “Yes.” After receiving the information that Mr. Bellerose had Asperger’s, the school chose not to renew his contract, and during a meeting with Mr. Bellerose to inform him of its decision, the principal allegedly stated:  “Your Asperger’s got in the way of your ability to interact with your boss, and we are tired of it.”

With respect to Mr. Bellerose’s claim of disability discrimination, the court held that this matter had to go to trial because the principal’s alleged statement regarding the connection between Asperger’s and the decision not to renew Mr. Bellerose’s contract was something for a jury to decide, not a judge.  In regard to the issue of reasonable accommodation, however, the court found that the school did not have a duty to engage in the interactive process because Mr. Bellerose made an insufficient connection between the fact that he had Asperger’s and the letters of reprimand he had received.  In essence, the court found it was not enough to say that he had a disability – Mr. Bellerose had to inform the school of the connection between his disability and the alleged misconduct.

Conclusion

What can we learn from these two very different cases? First, when an employee comes to an employer and asks for an accommodation so that they can perform an essential function of their job, the employer should engage in an interactive process, which might begin with a request for medical documentation. The right to request medical documentation for an employee, however, does not exist simply because an individual works for the employer, rather, it arises in unique circumstances, such as when an employee asks for an accommodation. Second, upon receiving and assessing medical documentation, the employer should engage in an interactive process in good faith with the employee. This process should involve listening to the employee and assessing both the employee’s needs and the employer’s. The law does not require employers to grant all requests for accommodation, but employers should be able to demonstrate a good-faith effort to understand and assess an employee’s request and provide a reasonable accommodation if required by law. Third, although Mr. Bellerose’s claim for failure to engage in the interactive process failed, employers should always consider meeting with an employee who has provided information about a disability to ascertain whether or not the information received will have an impact on the employee’s ability to do his or her job. Finally, these cases make clear how everyday conversations regarding an employee’s ability to do a job take on serious legal implications when the employee suffers from a disability. Employers would do well to train all employees who supervise others regarding what can and cannot be said in such circumstances to avoid allegations that could have a negative impact on a legal proceeding.