Difficulties of Reasonable Accommodation under the Americans with Disabilities Act

I recently attended a webinar on the Americans with Disabilities Act (ADA), sponsored by the American Bar Association.  The primary points made during the webinar were

1. The amendments to the ADA passed in 2008 were designed to relax the definition of “disability.” Cases brought under the ADA should now focus more on whether the employer discriminated against the employee, and less on whether the employee is disabled.
2. Employers should be able to justify their attempts to accommodate the employee.  An employer should “stop; think; justify” any actions vis-à-vis a disabled employee.  This applies both to determining the essential functions of the job and to the discussion of reasonable accommodations to permit the employee to perform the essential functions.

One of the speakers during the webinar was Chai R. Feldblum, Esq., a commissioner with the Equal Employment Opportunity Commission (EEOC).  Commissioner Feldblum stressed that the EEOC does not want to preclude employers from getting their work done, nor reduce business productivity.  If an employer has its job descriptions in place that list the essential functions, and if the employer engages in an interactive dialogue with the disabled employee, then determining whether a reasonable accommodation is possible should be straight-forward.

My experience has been that the reasonable accommodation process is not as easy as Commissioner Feldblum makes it sound. Ideally, a reasonable accommodation can be found quickly, but often, the process is inexact and time-consuming.

Here are some of the problems encountered in finding reasonable accommodations:

First, there is the problem of keeping job descriptions up to date. In today’s workplace, jobs change quickly.  In a large company, it can be a full-time job for several employees to keep job descriptions updated.  And writing job descriptions is probably not the most efficient use of employees’ time – companies that seek to be nimble may not want to slow down to create job descriptions that will be out of date by the time they’re written.  Requiring that job description be written is one of the reasons lawyers and HR professionals get a bad name among managers, even when they point to the ADA as the reason for the requirement.

Second, while it is easy for an employer to say that a job function is “essential,” there are always other ways to get the work done. Since one possible reasonable accommodation is to “restructure” a job, an employer is always subject to being second-guessed on whether a particular job function is “essential” and need not be eliminated, or whether it is non-essential and the employer will have to find another way to get the function done, or do without the function.

Third, while the employer can set both qualitative and quantitative standards for acceptable performance, these standards are also subject to debate during the reasonable accommodation process.  If a leave of absence or a reduced schedule is a reasonable accommodation, then a production standard may need to be reduced along with the employee’s schedule.  How then will the employer get enough production out to satisfy its customers?

Fourth, the necessary accommodations of a disabled employee sometimes evolve over time, or require a good deal of experimenting to see what works and what doesn’t.  The attempts at accommodation may even be unsuccessful in the end, resulting in frustration for the disabled individual, as well as for his or her managers and co-workers. Sometimes the employee isn’t ready to stop working, even after many accommodations have been unable to get the employee back to a productive state.

These problems don’t even get to the issues that arise when the employee’s request for an accommodation is less than clear, when the employee doesn’t know what accommodation they think might work, or when other employees become upset at having their jobs changed because the employer is accommodating someone else.  For more information about the ADA, see the EEOC's website on disability discrimination.

The purpose behind the ADA is laudable.  The practice is often messy.  Even employers operating in good faith can find themselves in expensive litigation.  Who is to say what is “reasonable”? Even years of attempted accommodations may not be enough to satisfy the EEOC or a judge or jury.

What have your experiences with the ADA been? 

Favorite Firings – Third in a Series

I’ve received some suggestions from readers on “favorite firings” to feature in this series. Here’s another good one. This story involves a situation that could have been tragic, but ended up being humorous.

The Facts:  A married female employee (we’ll call her Ursula) was having an affair with a male co-worker (John).  Ursula’s husband (Karl – not employed where Ursula and John worked) found out about the affair.

Karl was drinking one evening at the local pub, and decided he’d had enough of Ursula’s behavior.  He brought his shotgun into Ursula’s workplace and shot the lock off the doors into her department.

When Karl saw John, he aimed at John and fired, but thankfully missed.  Karl's bullets did destroy the soft drink vending machine on the premises, however.

After shooting at John, Karl sobered up slightly and raced out to his pick-up in the parking lot.

By the time Karl left, other employees had called the police. Karl was still drunk enough when he reached his truck that his driving was not of the highest caliber. He drove straight into the police car that had just arrived at the parking lot and still had its siren blaring and lights flashing.  The police easily apprehended Karl after the crash.

The company decided to fire both Ursula and John, because of the disruption and danger their affair had caused.  No, they weren’t fired for the affair itself, but because it led to danger to their co-workers.

John moved on with his life (presumably without Ursula).  But Ursula sued her employer for permitting her to engage in what she called “extracurricular marital affairs.”  In a rare display of prompt justice in employment cases, the judge quickly dismissed the lawsuit.

As a side note, Karl also sued.  He sued the pub for letting him get drunk. His case was also dismissed.

Not much has been heard from Karl or Ursula since.

The Moral:  The point of this story is not to make light of workplace violence, which is a serious problem and often leads to tragedy.  This case could have ended with employees and others dead or wounded.

In this case, the employer incurred some legal risk in firing Ursula and John, because their affair was not work-related behavior.  However, the consequences of them mismanaging their private lives had an impact in their workplace, and endangered their co-workers.

Because the employer treated both employees the same, there was no gender discrimination claim.

Many employees do not take responsibility for their own behavior and deserve to be fired. Ursula’s reaction in filing a lawsuit blaming her employer for her affair clearly fits this category.

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Remember, if you have any ideas for stories to publish, please email me or leave a comment below.  But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  I will only publish verified stories.