Good Faith Goes a Long Way: The Benefits of Fully Engaging in the Interactive Process Mandated by the Americans with Disabilities Act

On Monday, March 25, 2019, I had the privilege to co-present on reasonable accommodations and the interactive process under the Americans with Disabilities Act (the “ADA”) at the HR in Hospitality Conference in Las Vegas, Nevada. One of the issues Picture1covered during our presentation involved the fact that the ADA does not require that employers provide the specific accommodation requested by an employee as long as the employer offers a reasonable accommodation to the employee who made the request.  While employers can use their business judgment when deciding how best to reasonably accommodate an employee, a settlement recently announced by the EEOC underscores that many employers would be well-advised to develop internal procedures or guidelines to help ensure that those involved in the accommodation process understand what is expected of them and the company when responding to accommodation requests.   According to a lawsuit filed by EEOC in Minnesota, a Bath and Body Works store failed to reasonably accommodation a sales associate with type-1 diabetes suffering retinopathy who asked that a larger monitor screen be placed at the cash register.  Instead, a store manager purchased what the EEOC described as “a cheap, hand-held magnifying glass” to be used by the sales associate when working the register.

Under a consent decree settling the suit (EEOC v. Bath and Body Works), Bath and Body Works agreed to pay the employee $38,000 and adopt district-wide policies to prevent future violations of the ADA.   Chicago District Director Julianne Bowman, addressing the agency’s findings, emphasized that, “Companies must do more when an employee with a disability requests an accommodation. The purchase of a cheap magnifying glass was humiliating for this employee.”

“National employers must train their store managers to understand the ADA and have a system in place to accommodate employees with a disability.”

Greg Gochanour, U.S. EEOC, Chicago Regional Attorney

While cases like this make good fodder for press releases, the reality is that few, if any, employers purposefully shirk their responsibilities under the ADA.  Rather, as we often see when retained by employers to investigate and defend such cases, mistakes were inadvertently made due to a lack of coordination, training and/or communication between operations, management and human resources.  Unfortunately, even employers with the best intentions fall short of what the ADA requires because one or more of the individuals involved in managing the accommodation process make the sort of error or omission that could have been avoided if they had sufficiently detailed procedures outlining the roles, responsibilities and, to the extent possible, timelines to be followed.  Compliance efforts can be further enhanced—depending on the size and scope of the employer—by the creation of a reasonable accommodation team or designation of a “process” owner within the human resources function.

Whether or not an employer formalizes the roles and responsibilities of those in charge of handling requests for reasonable accommodation, it is essential that every employer understand the importance of making every effort to “fully” engage in the interactive process with each employee who requests an accommodation.  As I explained during my presentation last week, employers that make a good faith effort to engage in the interactive process may be able to avail themselves of an often-overlooked affirmative defense that can pay significant dividends in litigation—even if the employer is ultimately found to have failed to have provided a reasonable accommodation under the ADA.  Under 42 USC § 1981a(a)(3), damages may not be awarded where the employer “demonstrates good faith efforts, in consultation with the person with the disability who has informed the [employer] that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business.”

While results, of course, do matter, the law here rewards effort.  In other words, the employer that tries and fails is far better off than the employer that never tries because it assumes there is no reasonable accommodation available.  Often, this requires training both for human resources and operations personnel on the reasonable accommodation process so that everyone involved in evaluating and responding to accommodation requests understands what is expected of them and of the employer.  These individuals should understand that they need to approach each request on a case-by-case basis, avoiding assumptions about what is and is not possible.  No idea should be dismissed out of hand.  They should think outside the box and, when possible, consider creative outcomes.  Consulting third parties—whether a retained vocational expert or a free resource like the Job Accommodation Network—can be evidence of good faith efforts as the employer tries to identify solutions when all other avenues appear to be a dead-end.

Given the many demands placed on HR professionals, evaluating and responding to a request for a reasonable accommodation under the ADA in a timely and thorough manner may often prove to be a tall order.  Having a set of internal guidelines that can be followed and consulted by any member of the HR department at any time—particularly after they have been trained on how to handle such requests – can go a long way towards ensuring that the employer is doing what is expected of them under the ADA.  It also has the added benefit of helping the employer create a record of its efforts that the employer can use to defend itself down the line if and when a failure to accommodate claim is asserted before a fair employment agency and/or in court.

If you have any questions about how to develop internal guidelines for handling reasonable accommodations, please contact one of our labor and employment attorneys.

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