The Mandatory ADA Interactive Process Means Employers Have to Actually Discuss Potential Accommodations with Employee

The American with Disabilities Act (« ADA ») requires employers to provide reasonable accommodation to employees or prospective employees, including during the application and hiring process, unless the employer can show that it would cause an undue hardship.  The ADA prohibits employers from refusing to hire individuals because of their disability. The ADA also requires the employer to discuss with the employee reasonable ways to accommodate the disabled employee. According to the Implementing Regulations, following a request for reasonable accommodation, there must be a mandatory « interactive process ». The reasonable accommodation « interactive process » requires the employer to actually talk to his employee about reasonable ways that he could accommodate him. The employee do not necessarily have to agree to the accommodation, unless the employer can show that it was reasonable under the circumstances. The employer is not required to accommodate an employee when it would cause undue hardship to the company.

In the past two weeks the EEOC sued three companies for disability discrimination because they disregarded the mandatory « interactive process » as contained in the Implementing Regulations of the ADA and refused to discuss accommodation with their employees. This is a reminder that failing to communicate with disabled employees can lead to a lawsuit.

In the first lawsuit againt Kmart, the EEOC alleges that the employer refused “without discussing possible alternatives” to hire an applicant because he could not provide a urine sample for urinalysis (because of a kidney condition) even though the applicant « expressed his willingness to participate in drug testing and asked about reasonable accommodations such as drug testing not requiring urine, including blood or hair testing ».

In the second case against Rendall Ford, a car dealership in Arkansas, the employee asked for an accommodation following his back surgery and the employer « did not engage in any discussions with him about the suggested accommodations but simply fired him. »

Finally, in the third case against Kaiser Permanent, Kaiser refused to grant his employee his reasonable accommodation request (a non-profit organization offered to help the employee at work free of charge), and instead chose to fire the worker.

During the « interactive process », the employer and the employee should work together to identify what the barriers are and how they affect the employee’s performance. Afterwards, they should identify ways to remove those difficulties and assess whether there is a reasonable and effective accomodation available which would not cause undue hardship to the employer. The employer should also take into account the employee’s preferences.

Following those steps is the best way for an employer to avoid a lawsuit based on a disability discrimination. It is alo important for the employer to be able to document that he followed those steps to the EEOC.

If you believe you have been subjected to inconsistent hiring criteria or discriminatory employment practices, please contact The Harman Firm, LLP.