by Peyton S. Irby, Jr.
A recent decision by the U.S. 5th Circuit Court of Appeals—which covers Louisiana, Mississippi, and Texas—discussed a scenario in which an employer moved fairly slowly in engaging in the interactive process and providing reasonable accommodations. Let’s see what happened.
“Phoebe” was employed by the Louisiana Department of Transportation and Development (LDOT). She is disabled, but the court’s decision didn’t identify her disability. In 2007, she requested a handicap parking spot, and the LDOT created one for her. However, she claimed that was unreasonable because the location of the parking spot wasn’t close to her office in the rear of the building. Around 18 to 24 months later, the LDOT provided a handicap space at the rear of the building.
Phoebe also complained about ambient noise distracting her in 2007. The LDOT initially did nothing, but it later instructed other employees to keep the noise down and close a door to a hallway. Phoebe was offered a different office where the door would close, but she rejected the offer. A door was not installed in her office until 2011.
Phoebe’s final request came in April 2008 when she asked to be allowed to wear slippers or slipper-like shoes. She provided a note from a doctor. The LDOT’s safety policy prohibited such footwear. Phoebe was allowed to wear slippers while at her desk but was told she needed to wear “soft, rubber[-]soled shoes” in the hallways. However, she began wearing slippers at work and was never disciplined for doing so. The LDOT never changed its safety policy.
Phoebe filed an Americans with Disabilities Act (ADA) claim. A federal jury found against her, and she appealed.
On the issue of wearing slippers, Phoebe argued that the LDOT’s failure to formally amend its policy and its insistence she wear other shoes in the hallways was an ADA violation for non-accommodation. The court held that since she wore slippers without being disciplined, her requested accommodation was granted, even if informally.
Phoebe’s other argument was that the delays regarding her parking space and the noise issue violated the ADA, even though she was eventually granted reasonable accommodations. The court rejected that argument. It noted that the ADA does not provide a separate claim simply for delays in providing accommodations.
The issue for the jury was whether the LDOT acted in “good faith” in engaging in the interactive process and granting accommodations, even if there were substantial delays. The jury found that the LDOT did not act in bad faith based on the facts and arguments at trial, so its verdict was upheld. Schilling v. Louisiana Department of Transportation and Development, U.S. Court of Appeals 5th Circuit, 2016 WL 5795773.
This Employer Won, But Be Cautious
Each request for accommodation should be carefully considered as promptly as is feasible. There is no set timeline, but do not delay unnecessarily. Some accommodations (e.g., making physical alterations to a structure) will take longer, and some (e.g., allowing an employee to wear a different type of shoe) will take shorter amounts of time. The Equal Employment Opportunity Commission’s (EEOC) guidance, which is not binding on courts but can be considered by them, states that “unnecessary” delays can result in ADA violations.