Under the Americans with Disabilities Act Amendment Act (ADAAA) there is a requirement that employers have interactive discussions with employees (and candidates) to determine the extent of their need for an accommodation to perform the essential functions of their job. This discussion needs to be documented in order to show that discussion occurred and what the decision-making process was the employer went through to make their decision. What happens however if the discussion is not “interactive”?
Both parties must interact
A recent court decision in the Western District of Washington should that employees have to participate in the interactive process if they want consideration in an ADA case. According to a summary of Huge v Boeing Co. (W.D. Wash. March 4, 2016), written by attorney Robert Sheridan of Mintz Levin, an employee who had requested an accommodation from Boeing for her Asperger’s Syndrome disability was judged not to have participated in the interactive process and thus was not eligible for ADA protection. According to Sheridan she requested to receive only written instructions for her job. Then she reversed her request. Then she took leave and went to numerous doctors and submitted several extraordinary requests including personal assistants and job coaches.
In an attempt to evaluate the situation more thoroughly Boeing asked her to have an independent medical evaluation. She refused. So she never got the evaluation. When she returned to work, Boeing did give her job coaches to help but she spent her time trying to convince the coaches to help her sue the company. As a result she was terminated from her position. Naturally she sued.
According to Sheridan ““… the court held Huge’s failure to engage in the interactive process in good faith defeated her failure to accommodate claim.” The court said “the interactive process requires communication and good-faith exploration of possible accommodations between employer and employee and neither side can delay or obstruct the process.” The plaintiff did not meet this standard and as a result, as Sheridan said this “discharged Boeing from its obligation to provide her with a reasonable accommodation.”
I stress to my clients how important the documentation of the interactive process is. Engaging in the process without this documentation may be fruitless. It is the documentation of all the steps taken that will show the company’s good faith effort to comply with the ADAAA and that may be the saving grace in a lawsuit for failure to accommodate.
If you would like to read Robert Sheridan’s assessment you can find it here.
photo credit: manostphoto