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This article was first published in "Employment Update", a newsletter of Bullivant|Houser|Baily. Winter 2001, Volume 6, Number 1.
First, the employer should analyze the particular job involved to determine its purpose and essential functions.
Second, the employer and the individual with the disability should work together to identify what barriers exist to that individual’s performance of a particular job function.This analysis should include a review of the individual’s abilities and limitations and a determination as to which factors in the work environment or job tasks pose difficulties.
Third, the employer, working with the individual with a disability, should identify a range of possible accommodations that have the potential to remove the difficulties, either in the work environment or job tasks, and which would allow the individual to perform the essential functions of the job. Engaging in an interactive process, through which the employer and employee work together to arrive at a reasonable accommodation, is likely the employer’s best means of avoiding liability for disability discrimination and the failure to reasonably accommodate a disabled employee.The interactive process leads to better decisions and creates immunity from damages in a claim of failure to reasonably accommodate.
Fourth, having identified various possible accommodations, the employer should assess the effectiveness of each accommodation and the preference of the individual to be accommodated and then determine whether the various accommodations would pose an undue hardship upon the employer.
Recently, in Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), the Ninth Circuit Court of Appeals (whose decisions govern the Western states) addressed the interactive process in depth, noting that “the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and . . . this obligation is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for an accommodation.”
The Barnett case establishes guidelines for the interactive process, and the court’s discussion is extremely helpful to employers working with employees with disabilities. According to the court, an employer should:
Therefore, under the ADA, it is improper to force an accommodation on an employee without consulting with the employee or assessing the effectiveness of the accommodation with the employee. In Barnett, the court held that the employer did not engage in the interactive process in good faith because it rejected the employee’s proposed accommodation, but, at the same time, failed to offer any practical alternatives. It is important to remember that the burden is on both parties, the employee and the employer.
The court makes no bones about it — employers are required to engage in the interactive process. Thus, an employer neglects (or refuses) to engage in the interactive process at its own peril. Although the court did not hold that there is an independent claim for failure to engage in the interactive process, the actual consequences are just as severe.
The failure to participate in the interactive process in good faith deprives the employer of its immunity from damages for failure to reasonably accommodate an employee. Generally, if an employer fails to provide an employee with a reasonable accommodation, that employee can recover damages. However, if the employer engages in the interactive process in good faith, that employer will be immune from damages.
More significant is the ruling in Barnett that an employer failing to engage in the interactive process cannot obtain Summary Judgment, meaning that the case cannot be quickly decided by the court, but has to be decided by a jury trial. As an employer, you can greatly reduce the risk of ADA liability by engaging in the interactive process in good faith. Have an open dialogue with your employees and work with them to find solutions.
Douglas R. Andres is shareholder based in Bullivant’s Portland office. His litigation practice concentrates on the defense of employment discrimination, civil rights and municipal liability claims.
Mr. Andres has over 25 years of trial experience and dispute resolution in state and federal courts and administrative agencies in the Northwest and is admitted to practice in Oregon and Washington.
Mr. Andres’ practice focuses on the defense of employers and individuals in lawsuits making claims under employment discrimination statutes, related common law theories and civil rights statutes, including: sexual harassment; retaliation; disability discrimination; race, gender, religion, national origin, marital status and other protected class status discrimination; wrongful discharge; breach of contract; whistleblower claims; injured worker rights; and wage and hour claims.
Clay D. Creps is a shareholder based in Bullivant’s Portland office, and is chair of the Employment Department. His practice focuses on representation of employers, including defending employment litigation and counseling in employment law.
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