The First Circuit Court of Appeals issued a decision in December, 2014, that offers important guidance for employers and employees concerning the obligations of both parties during the “interactive process” under the Americans with Disabilities Act (“ADA”). The ADA protects disabled employees from discrimination on account of their disabilities and may require employers to implement certain reasonable accommodations for an employee’s disability. In some circumstances, an employee’s request for a reasonable accommodation may trigger a legal obligation on the part of the employer to engage in an interactive process. The interactive process involves an informal dialogue between the employee and the employer in which the two parties discuss the issues affecting the employee and the potential reasonable accommodations that might address those issues.
In Equal Employment Opportunity Commission v. Kohl’s Department Stores, Inc., the First Circuit considered whether an employee’s apparent unwillingness to engage in the interactive process precluded her from claiming that her employer had failed to accommodate her disability. The employee in that case suffered from diabetes and worked as a sales associate at a Kohl’s department store. Following a nationwide change to Kohl’s employees’ work schedules, the employee’s shifts switched from consistent days shifts, usually beginning around 9:00 a.m. and always ending before 7:00 p.m., to unpredictable shifts, sometimes involving “swing shifts,”—a night shift followed by a morning shift.
The employee maintained that the unpredictable shifts, in particular the swing shifts, were having an adverse affect on her diabetes. She provided Kohl’s with a note from her doctor attesting to that fact, and asked that she be given more predictable shifts, like a 9:00 a.m. to 5:00 p.m. shift on a regular basis, for example. After consulting Kohl’s Human Resources department, the Kohl’s store manager sat down with the employee to discuss her accommodation request. The store manager began by explaining that Kohl’s could not provide a consistently steady, nine-to-five schedule. The employee immediately became upset, told the store manager she had no choice but to quit because she would go into ketoacidosis or a coma if she continued working unpredictable hours, put her store keys on the table, and walked out of the store manager’s office. The store manager followed her and asked her to reconsider her resignation and to discuss other potential accommodations. The employee did not do so and instead cleaned out her locker and left the building. About a week later, the store manager called the employee and asked her again to reconsider her resignation and to consider alternative accommodations. The employee asked about her schedule, and the store manager explained that she would need to consult the corporate office concerning any accommodations. Following this conversation, the employee had no further contact with Kohl’s.
The employee filed a complaint with the Equal Employment Opportunity Commission (“E.E.O.C.”) concerning her situation with Kohl’s. The E.E.O.C. filed a lawsuit on the employee’s behalf against Kohl’s, claiming that Kohl’s had failed to provide the employee with a reasonable accommodation for her disability. A federal district court dismissed the lawsuit after concluding that the employee did not participate in good faith during the interactive process, which precluded her from claiming that Kohl’s had failed to accommodate her disability.
The First Circuit upheld the dismissal of the failure to accommodate claim. The Court noted that the interactive process “requires bilateral cooperation and communication” between the employer and employee. It then explained
We must emphasize that it is imperative that both the employer and the employee have a duty to engage in good faith, and that empty gestures on the part of the employer will not satisfy the good faith standard. If an employer engages in an interactive process with the employee, in good faith, for the purpose of discussing alternative reasonable accommodations, but the employee fails to cooperate in the process, then the employer cannot be held liable under the ADA for a failure to provide reasonable accommodations.
The Court concluded that the store manager’s repeated offers to discuss alternative accommodations to the employee’s preferred accommodation were good faith attempts to engage in the interactive process. In contrast, the Court determined that the employee’s refusal to entertain those offers was not a good faith effort to cooperate in the interactive process. As a result, the dismissal of the employee’s failure to accommodate claim was warranted.
Although the employer prevailed in this case based on the unique facts before the Court, the opinion serves as an important reminder to employers and employees concerning their respective obligations during the ADA’s interactive process. Both parties must engage in good faith efforts to arrive at a reasonable accommodation; empty gestures are not likely to satisfy the good faith standard during the interactive process. The ultimate goal of the interactive process is to find an accommodation that works for both the employer and the employee, a goal that can best be realized if both parties show a genuine willingness to work together to find an accommodation that satisfies the needs of both parties.
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