Accommodations, the Interactive Process, and Supervisors who Listen

Today, the Sixth Circuit reversed the dismissal of an ADA claim because the supervisor didn't want to deal with the employee's accommodation request. Now, procedurally, to get a case dismissed prior to trial, the court must assume the employee's testimony is true so who knows what the truth is. The facts according to the employee were that she worked at a Dollar General Store as a cashier. She suffered from degenerative osteoarthritis of her cervical and lumbar spine and other conditions. For some time her supervisors allowed her to use a stool to sit on when she worked but other employees complained that she was getting preferential treatment. Without the stool, the employee couldn't work and so she took medical leave. On return, she was not permitted to use a stool and was told she would be limited to 3 five minute breaks per 6 hour shift. She refused and promptly obtained a doctor's note saying she could return to work and that it would be "beneficial" to let her use the stool. The supervisor, she said, refused to look at the note. She left work and the employer fired her for job abandonment.

The abandonment claim came down to whether or not the employer refused her request for a reasonable accommodation. In a case that comes down to whether or not an employee was reasonably accommodated (or offered an accommodation), the cases specify that "When a party obstructs the process or otherwise fails to participate in good faith, ‘courts should attempt to isolate the cause of the breakdown and then assign responsibility.'" This standard derives from the EEOC's "interactive process" for resolving what kind of an accommodation would be reasonable and effective.

The employer lost - at the early dismissal stage - because it was responsible for the breakdown in the process. It wasn't just that the employer refused to let the employee use a stool, though that was a significant part of the employer's failing. It was that when the employee brought in a note saying she could work if she used a stool, the employer did nothing other than to reject that as an accommodation. Had the employer continued to work with the employee, the result might have been different. For example, the employer in this case argued it proposed a reasonable accommodation of letting her take several breaks. The employee apparently wanted "unlimited" breaks (the decision isn't clear on this). That would probably have not been a reasonable request but if the employer had sat down with the employee and tried to work out a specific break schedule - or even a process for giving her a few more breaks as needed upon a reasonable request to her supervisor - the result here would have been different.

So, employers should make sure the supervisors know that in "negotiating" an accommodation, it is crucial that they listen. They don't have to agree with the employee's request - just listen to it and say, we will consider it and get back to you as soon as possible. The employee cannot assume the worst and the ADA puts the employer in control by saying that if the employer proposes a reasonable accommodation, the employee doesn't get to reject it (as long as, of course, the accommodation is genuinely reasonable).