Recently, the 7th Circuit—which covers Illinois, Indiana, and Wisconsin—issued an opinion underscoring the importance of diligence, thoroughness, and consistent communication when you interact with employees seeking accommodations under the Americans with Disabilities Act (ADA) and reiterating its position that the interactive process is a shared responsibility between employers and employees.
In Brown v. Milwaukee Board of School Directors, the 7th Circuit found that a school district employer didn’t violate the ADA because the employee failed to fully engage in the interactive process to determine an appropriate accommodation. The court also found that the school district wasn’t obligated to promote the employee to a position for which she wasn’t the most qualified candidate.
When “Gloria,” an assistant principal for Milwaukee Public Schools, began to experience severe knee pain at work in 2006, her physician diagnosed her with arthritis and recommended that she be moved to a position with limited mobility requirements. The school district, accordingly, changed her work location and modified her work duties by excusing her from breaking up fights and physically intervening with students, even though these are typically responsibilities of an assistant principal.
In 2009, Gloria injured her knee while restraining a student and had to undergo surgery. Following surgery, her physician restricted her to sedentary work with no student interaction. He later modified the restriction, which he described as permanent, to state that she “should not be in the vicinity of potentially unruly students.”
Because nearly all students are “potentially unruly,” the district informed Gloria that she couldn’t continue working as an assistant principal and that she would remain on sick pay while the district worked with her to find a new position. Although she and the district identified several potential positions, none were suitable because—in the district’s estimation—they all required being in the vicinity of potentially unruly students.
Gloria underwent another surgery in late 2010 and was cleared to return to work in early 2011 with the following restriction: “avoid/no student discipline situations.” The school district asked for clarification—specifically whether the earlier restriction had been lifted. After numerous follow-ups by the district, Gloria and her physician notified the district that the earlier restriction remained in place and that she “should not be put in a position” to injure her knee “attempting to subdue an unruly student.”
Gloria applied for several other positions but wasn’t selected for any of them. When she challenged those decisions, the district representative explained that her work restrictions left very few options because most jobs require interaction with students who may be unruly.
As Gloria neared the end of a 3-year leave of absence to which she was entitled under the district’s policies, her physician requested that the district identify the essential functions of the assistant principal position. The district provided a list, adding that the job included “working in the vicinity of potentially unruly students.” The physician replied that Gloria could return to work but stated that she “should not be put in a position where she is responsible for monitoring and controlling students that may become uncontrollable.” He also noted that security should be able to handle such things instead.
The district reviewed four vacant lateral positions but concluded that Gloria wasn’t medically qualified for any of them. Having concluded that Gloria couldn’t perform the essential functions of any available position, the district terminated her employment.
Gloria filed a lawsuit alleging the school district violated the ADA by failing to accommodate her disability and unlawfully terminating her employment. Specifically, she alleged that the district should have accommodated her by reinstating her as assistant principal or assigning her to any one of five vacant positions.
The district argued that her work restrictions prohibited her from performing the essential functions of the assistant principal position and four of the vacant positions and that the final vacant position was a promotion for which she wasn’t qualified. The Eastern District of Wisconsin agreed with the school district and dismissed her claims. Gloria appealed.
7th Circuit’s Analysis
Affirming the district court’s decision, the 7th Circuit found that Gloria hadn’t provided the school district with the information needed to accommodate her in any position that required work in the presence of students. In addition, it agreed that the school district wasn’t required to offer her a promotion for which she wasn’t qualified.
In reaching these conclusions, the court noted that an employer isn’t liable for failing to accommodate an employee if she “does not provide sufficient information” to determine appropriate accommodations. In this case, Gloria’s permanent work restriction was very broad—i.e., she was unable to work in the vicinity of potentially unruly students.
Although individuals acting on her behalf challenged the district’s understanding of the restriction, the district sought clarification and either received none or was told again that she couldn’t be near students. Therefore, to the extent she believed her work restrictions were narrower than the district believed, she “failed to hold up her end of the interactive process by clarifying the extent of her medical restrictions.”
Gloria argued that the district should be prevented from arguing that being in the vicinity of potentially unruly students is an essential function of the jobs she requested because it wasn’t specifically listed on the job description. However, the 7th Circuit rejected this argument as well because the district’s judgment on this issue was supported by job descriptions, affidavits from HR employees, and Gloria’s own deposition testimony.
Finally, the 7th Circuit affirmed the district’s position that it wasn’t obligated to offer Gloria a position that amounted to a promotion. The court rejected her argument that the position wouldn’t have been a promotion, noting that whether a reassignment is a promotion isn’t based on employee perceptions.
Because the position would have increased her salary by about $20,000 per year, involved 12 (rather than 10) months of work, and involved increased responsibilities, the court concluded the district appropriately characterized the position as a promotion that the ADA didn’t require the district to offer her.
Although the court noted that the holding of this case is narrow because of its unique facts, the decision and its reasoning are instructive as you attempt to accommodate employees with disabilities. It also underscores the importance that courts place on diligence and thoroughness in the interactive process.
Employers that consistently communicate their understanding of work restrictions and seek clarification if ambiguous or potentially contradictory information is presented are well positioned to defend ADA claims. This is especially true when the restrictions are very broad and potentially foreclose a large number of positions.
Your efforts to communicate with employees about the interactive process should be well documented. For instance, during one three-week period in this case, the district left two voicemails, sent a certified letter, and sent an e-mail stating the file relating to the employee’s requests for accommodations would be “deactivated” if the employee failed to respond.
Finally, while a transfer to an open position for which the employee is qualified can be a reasonable accommodation, you aren’t obligated to promote employees as an accommodation. Whether a reassignment is a promotion isn’t based on the employee’s perceptions; rather, it’s based on changes in salary, status, and responsibilities.