Most employers know they need to seek a reasonable accommodation for disabled workers who are otherwise qualified to perform their jobs. But applying this rule to real-life situations can be complicated. What if an employee wants an accommodation that would require you to make an exception to your established seniority system? And how far do you have to go in considering seemingly unworkable accommodations proposed by an employee? A recent court decision grapples with some of these issues and limits an employee’s right to dictate how you accommodate their disability.
Cargo Worker Injured On The Job
Robert Barnett injured his back while working as a cargo handler for USAir at San Francisco International Airport. After a leave of absence, Barnett transferred to a mailroom position, not as an accommodation but because he had the seniority to do so. When he injured his back again, his doctor imposed permanent restrictions on his bending, twisting, standing, sitting or lifting objects heavier than 25 pounds. Barnett recovered sufficiently to return to the mailroom. But the restrictions made it impossible for him to ever go back to his old cargo position.
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Insufficient Seniority
The mailroom jobs were subsequently opened for bidding by other workers and Barnett did not have enough seniority to keep his mailroom slot. He asked USAir to make an exception for him, but it refused. The airline allowed Barnett to stay in the mailroom temporarily, but because he wasn’t qualified to perform another position, he was eventually placed on job injury leave.
Employee Suggests Accommodations
While on leave, Barnett proposed two other possible accommodations. First, he asked for special robotics lifting equipment that would enable him to perform his old cargo job. Alternatively, he asked the airline to modify the cargo position so that he could do only desk work.
USAir denied both requests, and ultimately terminated him. Barnett then sued for disability discrimination, claiming the airline failed to accommodate him.
Court Rules For Employer
The federal Ninth Circuit Court of Appeal sided with USAir, finding none of Barnett’s proposed accommodations were reasonable.
First, the court said USAir was not required to make an exception to its established, legitimate seniority system in order to accommodate Barnett’s disability. The court did acknowledge that there could be situations in which an exception would be warranted. For example, you might have to bend the rules if a seniority plan has not been consistently followed, if it has been designed or used to discriminate against disabled workers or if the plan itself permits exceptions to accommodate disabled or other employees.
Second, the court also rejected Barnett’s other proposed accommodations. The court ruled that the airline was not required to purchase the technologically advanced robotics equipment for Barnett. And it rejected Barnett’s proposed modification of the cargo job to include only desk work because lifting and moving cargo were essential job functions of the position.
According to the court, it is the employee’s responsibility to show that a workable accommodation exists, which Barnett didn’t do.
No Liability For Failing To Discuss Options
Barnett also claimed USAir should be liable for discrimination simply because it never discussed the proposed accommodations with him. The Americans with Disabilities Act requires employers and employees to engage in an “interactive process” in which the parties discuss the worker’s limitations and possible accommodations. Barnett claimed that even if USAir did nothing else wrong, it broke the law by failing to fully explore accommodation options with him.
But the court wouldn’t go that far. While acknowledging that employers should talk with disabled employees to determine the best accommodation, it refused to find employers automatically liable for failing to do so. Instead, you’re guilty of discrimination only if a reasonable accommodation existed and you refused to provide it.
Limit Your Risks
Although the court’s ruling was generally a victory for employers, it serves as a reminder that there are dangerous pitfalls in handling disability accommodation issues. For example, if an employee suggests accommodations that a court later decides were feasible, you could be responsible for failing to accept them. Here are some strategies for avoiding problems:
- Consult with the employee. Despite the court’s refusal to hold USAir liable for not discussing accommodation options with its employee, the ADA generally requires you to consult with the disabled worker to try to come up with a reasonable accommodation. Even if you can’t reach an agreement and the person sues, your having taken extra steps to try to accommodate the employee will strengthen your defense.
- Draft detailed job descriptions. Without detailed job descriptions written in advance, it can be difficult to objectively show which job functions are essential or why you could not accommodate a disabled worker.
- Consider reassignment. Although you don’t have to ignore your seniority system or bump other employees, you may have an obligation to reassign a qualified disabled worker if a position is available and there isn’t an accommodation that will enable the person to perform their present job. Plus, finding a new position for a disabled employee can go a long way toward heading off a potentially expensive lawsuit.