By Jonathan R. Mook
Just as employers were starting to feel comfortable complying with the Americans with Disabilities Act (ADA), now over a decade and a half old, courts have added a significant new training and compliance challenge.
Employers not only must reasonably accommodate persons with actual disabilities but also must accommodate those who are perceived to have disabilities.
These rulings, which seem illogical on their face but are based on literal readings of the statute, should spur HR professionals to take a second look at their reasonable-accommodation processes and policies.
Since the law was enacted, many employers have established procedures by which persons with disabilities may request reasonable accommodations. And most employers also have established protocols for determining, first, whether a person requesting accommodation has an ADA disability if the impairment is hidden and, second, accommodations that will enable the individual to perform the job’s essential functions without creating an undue hardship.
That first step may not make much sense in the wake of courts’ rulings that employers also must reasonably accommodate those who are perceived to have disabilities, regardless of whether they actually do. Employers, as a result, may focus more on quick fixes.
But what if there isn’t an easy answer? A four-step problem-solving process should help employers comply in the changed legal landscape of “ADA-land.”
Simpler Time For Accommodation Mandate
The reasonable-accommodation mandate once seemed like the relatively straightforward portion of the law, even if it did involve flexibility and discussions with the employees; what constituted a disability was the vague part. How has this mandate become so much more complex?
Two of Congress’ major goals in passing the ADA were to eliminate historic discrimination against persons with disabilities and to help them enter the mainstream of society. To accomplish this latter goal, especially, Congress recognized that individuals with disabilities may have difficulties performing the functions of their job because of their disabling conditions. To address this problem, Congress included in the statutory scheme the reasonable-accommodation requirement.
As the Equal Employment Opportunity Commission (EEOC) has explained, reasonable accommodation is “a means by which barriers to the equal employment opportunity of an individual with a disability are removed or alleviated.”
The ADA’s requirement that an employer reasonably accommodate an individual with a disability to enable that person to perform the essential job functions makes sense in the case of a person who has an actual disability—i.e., one who has a physical or mental impairment that substantially limits a major life activity. Because of his or her disability, a person may be unable to perform certain essential job functions, and reasonable accommodation is the means by which the person can fulfill the job tasks.
In other words, reasonable accommodation may be viewed as a means of leveling the playing field for an individual who has an actual disability.
Reasonable accommodation as a means of assisting persons with disabilities to enter the mainstream of society, however, does not appear necessary in the context of individuals who are regarded as disabled but do not have an actual disabling condition. To be sure, persons who are regarded as disabled may be subject to discriminatory stereotypes and may need the protections of federal antidiscrimination legislation to enable them to participate fully in society. Nonetheless, the need for an employer to provide reasonable accommodations to those who have no actual disabilities would not appear to be a requirement necessary to further the goals of the ADA.
In the case of regarded-as-disabled persons, for example, the barriers to equal opportunity are not the failure of an employer to supply a reasonable accommodation but, rather, the employer’s stereotyped views of the person. The nondiscrimination mandate of the ADA requires employers to shed these stereotypical assumptions about persons who are regarded as disabled, but, logically, the statute should not require an employer to go further and provide accommodations for a nondisabling physical or mental condition.
In addition, requiring reasonable accommodation of regarded-as-disabled persons would run counter to the ADA’s goals of equality, not preference, for persons with disabilities. Accommodating persons who are not actually disabled but only perceived to be so does not have such a leveling effect. Instead, it would create a windfall for regarded-as-disabled employees by rendering them entitled to accommodations that their similarly situated co-workers would not be entitled to receive. The goals of the ADA are not advanced by giving an impaired but not disabled person an entitlement to reasonable accommodation because of his or her employer’s erroneous perception of disability, when other employees who are impaired but not disabled are not entitled to such an accommodation.
Regarded-As-Disabled Rulings Extend Mandate
Until fairly recently, most courts that had addressed the issue of an employer’s obligation to accommodate persons who are regarded as disabled have taken the position that no accommodation was required. These courts reasoned that the reasonable-accommodation requirement was mandated by the ADA only to ensure that persons with actual disabilities were provided accommodations by their employers to enable them to perform the essential job functions.
In mid-2004, however, the 3rd U.S. Circuit Court of Appeals in Williams v. Philadelphia Housing Police Dept. (380 F. 3d 751 (3rd Cir. 2004), cert. denied, 125 S. Ct. 1725 (2005)) reversed this judicial trend by holding that if a police department regarded a police officer as disabled because he could not carry a weapon due to his mental condition, the department was required, as an ADA reasonable accommodation, to consider reassigning the officer to a position that did not require him to carry a weapon.
Then, the 10th Circuit in Kelly v. Metallics West Inc. (410 F. 3d 670 (10th Cir. 2005)) and the 11th Circuit in D’Angelo v. ConAgra Foods Inc. (2005 U.S. App. LEXIS 18639 (11th Cir. 2005)) followed the 3rd Circuit’s decision in Williams and also decided that employers are required to provide reasonable accommodations for employees who are regarded as disabled.
In Kelly, the 10th Circuit held that it would be for the jury to determine whether an employer had an obligation to allow an employee who had been hospitalized with a blood clot to return to work with an oxygen tank, even if the employee’s health impairments did not render her substantially limited in any life activity and, hence, she was not actually disabled under the ADA.
In D’Angelo, the 11th Circuit ruled that an employee who suffered from vertigo had raised a triable issue as to whether her employer had regarded her as substantially limited in her ability to work because of her vertigo and whether she could have been accommodated by being exempted from having to work at a conveyor belt for a long period.
Most recently, in June 2006, the California Court of Appeals, in interpreting California’s Fair Employment and Housing Act, which, like the ADA, prohibits discrimination against persons with disabilities, ruled that a former employee of Lockheed Martin could proceed to trial on his disability discrimination claims that the company had failed to accommodate his impairments resulting from a back injury by permitting him one or two additional breaks or allowing him to occasionally sit on a stool. The appeals court held in Gelfo v. Lockheed Martin Corp. (140 Cal. App. 434 (Cal. Ct. App. 2d Dist. 2006)) that this was the case even if the employee could not establish that his injuries rose to the level of an actual disability, but that he was merely regarded as being disabled.
ADA Interpreted Literally
In reaching the conclusion that regarded-as-disabled individuals are entitled to reasonable accommodation, the courts have relied primarily on an analysis of the statutory language of the ADA and, in particular, the statutory definition of “disability,” which includes persons who are “regarded as having … an impairment” that “substantially limits one or more of the major life activities of … [an] individual.” The courts also have looked to the definition of “qualified individual with a disability,” which is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
Thus, in Kelly, the 10th Circuit explained that given “the plain language of the ADA’s interlocking statutory definitions … within the rubric of a ‘qualified individual with a disability’” individuals protected by the ADA include persons (1) regarded as disabled but (2) who, with reasonable accommodation, can perform the essential functions of the position that they hold. The court also pointed to the statutory definition of “reasonable accommodation,” which makes no distinction between employees who are actually disabled and those who are merely regarded as disabled.
In its opinion in D’Angelo, the 11th Circuit also noted that the ADA’s “prohibition on discrimination applies equally to all statutorily defined disabilities,” including those individuals who are “regarded as disabled” and “plainly prohibits ‘not making reasonable accommodations’ for any qualified individual with a disability, including one who is disabled in the regarded-as sense no less than one who is disabled in the actual impairment … sense.” As the D’Angelo court explained, “[t]he text of this statute [the ADA] simply offers no basis for differentiating among the three types of disabilities in determining which are entitled to a reasonable accommodation and which are not.” Consequently, the court determined that “the ADA’s plain language—which treats an individual who is disabled in the actual-impairment sense identically to an individual who is disabled in the regarded-as sense—compels us to conclude that the very terms of the statute require employers to provide reasonable accommodations for individuals it regards as disabled.”
Supreme Court Consideration?
Those courts that have ruled that the ADA requires reasonable accommodation of regarded-as-disabled individuals also have concluded that this interpretation of the statute is consistent with the Supreme Court’s interpretation of the 1973 Rehabilitation Act, whose terms were for the most part the pattern for the ADA, in a 1987 Supreme Court decision (School Board of Nassau County v. Arline, 480 U.S. 273 (1987)).
Moreover, the conflicting decisions in the circuit courts as to whether regarded-as-disabled individuals are entitled to reasonable accommodation have resulted in a clear circuit court split and have created unwelcome uncertainty for employers. Even those circuit courts that have taken the position that only persons with actual disabilities are entitled to reasonable accommodation could reconsider the issue in light of recent decisions from other circuits and conclude that the reasonable-accommodation obligation extends beyond those with actual disabilities to encompass persons who are regarded as disabled. Given the circuit court split, it is likely that the question of who is entitled to reasonable accommodation under the ADA will be the subject of Supreme Court consideration.
Baffling ‘Plain Meaning’
In matters involving statutory interpretation, the Supreme Court has adopted the “plain meaning” canon, which assumes that legislators intended the words of the statute to convey their ordinary meanings and if the plain meaning of a statute is clear, then no other method of statutory interpretation is necessary. If the Supreme Court were to apply this doctrine to the issue of who is entitled to reasonable accommodation under the ADA, it would appear that the Court would side with the rationale adopted by the 3rd, 10th and 11th Circuits, as well as by the California Court of Appeals, that reasonable accommodation is required for all those who come within the ADA definition of “disability,” including those who are regarded as disabled.
Nonetheless, even those most forceful advocates of the plain-language rule, such as Justices Antonin Scalia and Clarence Thomas (and the late Chief Justice William H. Rehnquist), recognize that in those situations where the statute’s literal language would produce absurd or bizarre results, the application of common sense trumps mechanistic textualism and, as a consequence, any application of the plain-meaning approach must not violate common sense or create bizarre results. Arguably, that is the result where an employer is required to reasonably accommodate regarded-as-disabled employees, in addition to those who are actually disabled.
Quick Fix Or Four-Step Process?
Given this uncertainty in the law, what is an employer to do? The simple answer is to attempt to accommodate an individual’s physical or mental impairment, even if that impairment may not rise to the level of a disabling condition under the ADA.
If an accommodation can easily be implemented by an employer, then, whether or not the individual is actually disabled, the legal issue goes away. The employee requesting an accommodation is satisfied, and, by providing the accommodation, the employer presumably has created a workplace situation that allows the employee to perform his job. It is a win-win situation for both employer and employee.
On the other hand, if the employer believes that the accommodation requested by the employee is not one that is reasonable to implement, either because of the nature of the accommodation itself or because of the impact that providing the accommodation would have on other employees, an employer still should go through the interactive reasonable-accommodation process.
That process basically involves a four-step problem-solving approach between the individual who requests an accommodation and the employer:
Step 1—Conduct job analysis. The employer analyzes the particular job involved to determine both its purpose and its essential functions.
Step 2—Identify performance barriers. Consulting with the individual, the employer should identify the barriers that make it difficult for the person to perform the job. In making this assessment, the employer should ascertain the nature and extent of the employee’s impairment for which an accommodation may be sought and, in cooperation with the employee, identify his or her abilities and limitations.
Step 3—Consider potential accommodations. Often the employee will identify potential accommodations that may help to overcome the barriers to performance identified in Step 2. The employer, in the course of making the Step-2 analysis, also may determine potential accommodations. Each potential accommodation should be tested to determine its effectiveness in enabling the individual to perform the essential functions of the job.
Step 4—Assess reasonableness in choosing among reasonable accommodations. An employer should assess the reasonableness of each possible accommodation identified in Step 3 in terms of both cost and effectiveness.
After making this assessment, the employer may choose to provide the accommodation that will enable the individual to perform the essential job functions. It is important to note that the accommodation chosen by the employer does not need to be the best accommodation possible, particularly if that accommodation is extremely expensive or would disrupt other employees or alter the manner in which work is performed.
As long as an accommodation chosen by the employer will let the individual perform the essential functions of the job and, in the words of the EEOC in its interpretive guidance to ADA’s employment regulations, will provide a “meaningful equal employment opportunity,” the employer has fulfilled its reasonable-accommodation obligation under the ADA.
By engaging in this four-step reasonable-accommodation process, an employer may protect itself from charges of disability discrimination by an employee who claims to have an actual disability or by one who claims to have been regarded as disabled. The courts have made clear that if, during the reasonable-accommodation interactive process, the individual seeking an accommodation fails to respond to the employer’s reasonable requests or otherwise causes a breakdown in the process, the employer cannot be held liable for failure to accommodate the employee in violation of the ADA requirements.
For example, the 7th Circuit has stated that “courts should look for signs of failure to participate in good faith [or of] failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary” (Beck v. Univ. of Wisconsin Board of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)).
Avoiding Regarded-As Claims
In engaging in the interactive reasonable-accommodation process, an employer may be concerned that, by its actions, it will be deemed to have conceded that the employee is actually disabled or will be held to have regarded the individual as being disabled.
The fact that an employer may consider accommodating an employee or may even provide accommodations for an employee’s impairment, however, does not mean that the employer has regarded the individual as being disabled. The courts have avoided the “no good deed goes unpunished” situation by making it clear that an employer may attempt to help an employee improve his or her job performance by providing accommodations to the person’s physical or mental impairment without regarding that person as disabled.
Also, employers can take measures to avoid being charged with having regarded an employee as disabled in responding to requests for accommodation. When an individual requests an accommodation because of a physical or mental impairment, an employer has the right under the ADA to require that person to provide medical documentation about the individual’s impairment and functional limitations to determine whether that person has a disability that would be covered under the ADA. For example, if, in response to a request for reasonable accommodation, an employer seeks medical information, the employer should limit the request to information pertaining to how the person’s physical or mental impairment actually limits the person’s ability to perform job-related functions. Requesting records of the person’s entire medical history creates the risk that the employee will contend later that the employer regarded the employee as being disabled.
Further, in addressing an employee’s request for accommodation, an employer should focus on the request and the need for an accommodation to perform the particular job at hand, not on the more general impact of the person’s impairment and its possible effect on the employee’s ability to perform other types of jobs or to engage in other activities unrelated to work.
For example, if an employer determines that because of an impairment, an individual is not able to perform the functions of the job and that no reasonable accommodation (including reassignment to a vacant position) is possible, that should be the end of the story. The employer should not go further and opine about the individual’s inability to perform other types of job-related activities or other types of jobs, particularly in those circumstances where the employer believes that the individual should seek another line of work.
Statements by an employer that an employee should consider alternative types of work because of an impairment could be viewed by a court, or a jury, as indicating that the employer regarded the individual as being substantially limited in the major life activity of working.
The ADA is an ever-evolving statute. As a consequence, HR professionals need to keep abreast of current court interpretations of the statutory requirements to alter and adjust their HR practices in light of the developing law.
The need for such vigilance is highlighted by the split in the circuit courts as to whether an employer is obligated to reasonably accommodate regarded-as-disabled individuals. Recent court decisions holding that an employer’s obligation to accommodate includes the accommodation of those individuals who are regarded as disabled serves to emphasize that an employer should err on the side of caution. Seek to accommodate individuals who have physical or mental impairments, even if those impairments, in actuality, do not rise to the level of a disabling condition under the ADA.
Try focusing on an employee’s specific limitations that hinder or prevent the person from performing the essential functions of the job and seeking to devise reasonable accommodations to enable effective job performance. With a narrow focus, the employer should be able to avoid the possible Catch-22 of having the employer’s good deeds be deemed a concession that the employee has been regarded as disabled and is entitled by law to reasonable accommodation under the ADA. Given the uncertainty in the state of ADA law, an appropriate legal axiom may be: “When in doubt, accommodate.”
Jonathan R. Mook, Esq., a founding partner of DiMuroGinsberg PC, is a nationally recognized authority on the ADA and the author of the Americans With Disabilities Act: Employee Rights and Employer Obligations (Matthew Bender, 1992, revised annually). He has lectured at the American Bar Association’s annual meeting on disability discrimination.