by Maria Greco Danaher

The 9th U.S. Circuit Court of Appeals has determined that an employer's failure to attempt a second accommodation, after a first attempt failed, violates the duty to engage in the interactive process required by the Americans with Disabilities Act (ADA). This holding imposes an affirmative obligation upon employers to continue the interactive process when an initial accommodation fails. Once an employer becomes aware of a qualified employee's need for accommodation, the ADA obligates the employer to engage in an "interactive process" with the employee to identify and implement an appropriate and reasonable accommodation. That process requires communication and good-faith discussion of possible accommodations between the employee and the employer. A party who obstructs or delays the interactive process, or fails to communicate with the other party, is not acting in good faith. Further, the Equal Employment Opportunity Commission (EEOC) takes the position in an enforcement guidance that if a particular accommodation turns out to be unworkable, the EEOC must consider whether there is a reasonable alternative accommodation.

Carolyn Humphrey worked for Memorial Hospitals Association (MHA) as a medical transcriptionist for nearly 10 years. Throughout her employment, Humphrey was rated an excellent employee and consistently exceeded MHA's standards for speed, accuracy and productivity. In 1989, Humphrey began to experience problems getting to work on time, if at all, in connection with what was ultimately diagnosed in 1995 as "obsessive compulsive disorder." She felt compelled to engage in a series of rituals in preparing for work, including rinsing her hair for up to an hour, and rewashing it afterwards if it didn't "feel right." Humphrey received a number of disciplinary warnings for tardiness and absenteeism, and finally met with her supervisor to request an accommodation in her work hours.

MHA proposed a flexible start-time arrangement in which Humphrey could begin work any time within a 24-hour period on her scheduled workdays. Nevertheless, Humphrey continued to miss work, and asked whether, in lieu of the flexible time, she could work from home, as some other transcriptions did. She was told that employees with disciplinary records were ineligible to work at home. MHA offered no alternative to Humphrey's request to work at home. When Humphrey continued to miss work, her employment was terminated, on the basis of her history of absenteeism and tardiness.

Humphrey filed suit, alleging that MHA had failed to accommodate her disability and had wrongfully terminated her employment. Although the lower court granted summary judgment in favor of MHA, the 9th Circuit reversed that decision. Humphrey's case was allowed to go forward, on the ground that a jury could reasonably find a link between Humphrey's disability and her absenteeism, and could therefore conclude that MHA fired her because of her disability. Furthermore, the court said, an employer's obligation to engage in the interactive process extends beyond a first attempt at accommodation and continues when an employee asks for a different accommodation, or where the employer is aware that the initial accommodation is failing and further accommodation is needed.

Humphrey Memorial Hospitals Association, No. 98-15404 (9th Cir., Feb. 13, 2001). -Reprinted from HR News