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Federal Appeals Court Emphasizes Importance of Interactive Process in Disability Accommodation

  • March 13, 2006

A recent decision by the U. S. Court of Appeals for the Third Circuit serves as a reminder to employers of the legal importance of engaging in the interactive process to determine whether a reasonable accommodation is available for an employee with a disability. Although a federal trial court had dismissed the employee's lawsuit alleging the employer had failed to accommodate his disability and then discriminated against him in violation of the New Jersey Law Against Discrimination, the federal appeals court reversed that decision. In so doing, the appeals court re-emphasized that employers have a duty to engage in an interactive process to uncover potential accommodations even in situations where the employee does not request a specific accommodation. [ Armstrong v. Burdette Tomlin Memorial Hospital, et al.,]

The employee worked as a full-time shipping and receiving clerk, a position which he contended did not involve heavy lifting. Beginning in 1997, the hospital employer created a full-time position for a linen distribution clerk after it ended a contract with a private vendor. Concerned he might be asked to perform the linen clerk job, the employee sent several letters to his supervisor reminding him of his chronic back problem and urging his supervisor not to assign him linen work. The employee argued the linen job was considerably more strenuous than his stock clerk job because it would require him to repeatedly bend down and pick up 20 to 30 pound bundles of linen from a five-foot-deep cart. Because the hospital had difficulty filling the position, the stock clerks, including the employee, shared the linen clerk's functions when no linen clerk was on duty.

Asking for his "old job" back, the employee provided the hospital with a doctor's note stating he could not perform tasks that involved excessive lifting, bending, pushing or pulling, and that reaching over the tall sides of the linen cart exacerbated his condition. The hospital denied his request and determined the employee could no longer perform the essential functions of the store clerk position, which now sometimes included the linen clerk's functions. The hospital offered the employee three options: (i) transfer to a mutually agreeable position; (ii) apply for temporary disability benefits; or (iii) resign. The employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment.

In his lawsuit, the employee alleged that the hospital had discriminated against him based on his disability and had failed to provide him with a reasonable accommodation in violation of the New Jersey Law Against Discrimination. Following a trial, the jury found in favor of the hospital on all claims. On the employee's appeal, however, the Third Circuit reversed the trial court's decision and sent the case back for a new trial based on the following determinations:

  1. The trial court should not have required the employee to prove that he had requested a specific accommodation. Rather, under the NJLAD, it is enough for an employee simply to express a desire to be accommodated, even the employee never actually requests the accommodation that he later alleges the employer failed to provide.
  2. The hospital's conclusion that the employee could not perform the essential functions of his position and apparent refusal to consider modifications to his store clerk position constituted a failure to make a "good faith effort" to accommodate the former employee. Specifically, the court found that the jury could reasonably conclude from the testimony of the hospital's human resources director that the hospital was not genuinely interested in accommodating the employee.
  3. The employee had identified several potential reasonable accommodations which would have enabled him to perform the newly assigned linen cart duties. For example, the employee alleged that a different laundry cart or an exchange of duties with another clerk would have enabled him to perform the duties of his position.

In reversing the trial court's decision, the Third Circuit re-emphasized that the greater burden is on the employer to initiate the interactive process once the employee expresses a desire to be accommodated.

Ultimately, this decision highlights how important it is for employers to: (i) explore other potential accommodations, even those not necessarily requested by the employee; (ii) consider any and all positions in the organization to which the employee may be transferred on a non-competitive basis and able to perform the essential functions with or without an accommodation; (iii) wherever possible, obtain the employee's agreement that he or she cannot perform the essential functions of the job in question; and (iv) build a record through correspondence or memoranda of the employer's efforts to discover a reasonable accommodation. By exploring reasonable accommodations options, which may enable qualified employees to continue their employment, employers can retain experienced staff and minimize their risk of liability. Ultimately, if it is not reasonable or feasible to provide such an accommodation, the employer will be in a better position to defend against a potential claim of unlawful treatment.

©2006 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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