When an employer fails to participate in the interactive process of finding a workplace accommodation for an employee with a disability, that misstep can be used as evidence of discrimination. Such a failure is not, however, an ADA violation when it stands alone, the 7th Circuit ruled in Basden v. Professional Transportation, Inc., No. 11-2880 (May 8, 2013), reinforcing its precedent on the issue.
Facts of the Case
Terri Basden worked as a dispatcher for Professional Transportation, Inc. PTI’s attendance policy called for employees to be fired after eight absences in a year. When Basden began experiencing symptoms that were later diagnosed as Multiple Sclerosis, she quickly accumulated seven absences.
She provided doctors’ notes for each absence — some of which included emergency room visits — and requested a month-long leave of absence usually reserved for employees with a year’s tenure. Because she had not been with PTI for a year, her request was denied.
She was absent an eighth time and PTI fired her. Basden filed suit, alleging that PTI had failed to accommodate her disability and failed to engage in the interactive process of finding an accommodation. The U.S. District Court for the Southern District of Indiana granted summary judgment for the employer and Basden appealed.
On appeal, the 7th Circuit found that Basden failed to show that she was qualified to perform the essential functions of her job, with or without a reasonable accommodation — a prerequisite to proceeding with an ADA claim.
Basden failed to show that the requested month off would have allowed her to return to work without erratic attendance issues. Therefore, there was no reasonable accommodation that would have rendered her qualified for the job.
Basden then argued that PTI ran afoul of ADA when it failed to engage in the interactive process of looking for a reasonable accommodation. The “interactive process” is an informal, interactive discussion between the employer and the individual who needs an accommodation.
But the 7th Circuit, and most other courts, have previously held that there is no independent legal violation of ADA for failing to engage in the interactive process. Usually, such a failure is merely evidence in a “failure to accommodate” claim.
While the Basden court said it could not “conclude that PTI’s response to Basden’s request was appropriate under the ADA,” it also could not find that it had violated the law.
The failure to engage in the interactive process ADA requires is not an independent basis for liability under the statute, the court said. The 7th Circuit upheld summary judgment for PTI, “despite any shortcomings in PTI’s response to her request.”
Employer Take-away
Despite PTI’s success in Basden, risk-adverse employers still may want to participate in ADA’s interactive process for several reasons.
First, employers in the 9th Circuit are subject to case law that opposes the 7th Circuit’s position. There “is a mandatory obligation to engage in an informal interactive process,” the 9th Circuit said in Vinson v. Thomas, 288 F.3d 1145 (2002). The ruling applies to employers in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Likewise, state law in California and case law in Connecticut and New Jersey suggests that the interactive process is required in those states.
But even for other employers, the decision to ignore the interactive process remains risky. The 7th Circuit found that PTI did not violate ADA because it was later discovered that a month of leave would not have allowed Basden to return to work. Had Baden’s condition improved with treatment, the case may have ended differently.
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