Helpful Tips For Addressing Reasonable Accommodation Issues

By Stanley J. Eichner, Executive Director, Disability Law Center

1. The most critically important principle in the area of disability discrimination is reasonable accommodation. Most cases will ultimately rise and fall based upon whether you will be able to convince the trier of fact that your client (both sides) acted fairly and reasonably in making a good faith attempt to figure out whether there is a reasonable accommodation that will enable the employee/applicant to perform the essential functions of the job.
2. Although it will likely be resisted as being counter intuitive to everything they ever learned about employment law, you need to counsel and educate employer clients that this is virtually the only area of employment law where the employer might face liability despite the fact, and perhaps because of the fact, that they treated the applicant/employee with a disability “exactly the same wayas all the other employees.”
3. The scope of the reasonable accommodation obligation is exceedingly broad. It applies to all aspects of the employment relationship, including recruitment, interviewing, workplace site, workplace rules and benefits. The purpose of reasonable accommodation requirement is to remove unnecessary barriers to equal employment. The obligation is ongoing and dynamic, i.e., it can arise any time that the person’s disability or the job conditions change. Sometimes those barriers are physical (architectural), sometimes they involve how people communicate (communication barriers), and other times they involve rigid work schedules and rules. Note that in some instances, the only barriers that exist are those that exist in people’s minds: unfounded fears, prejudices, stereotypes, presumptions and misconceptions about performance, safety or costs.
4. Be Reasonable! It’s not called reasonable accommodation for nothing. Often the case will boil down to whether your client was reasonable in his/her dealings with the other side. If your client is the employer, a critical focus will be whether it was reasonable in listening to the employee/applicant’s need and was reasonable in responding to the request. If your client is the applicant/employee, much of the focus will boil down to whether what was being sought was reasonable.
5. For example, encourage your client to consider a number of different reasonable accommodations. Get suggestions about possible accommodations from all sources. If the employer/employee rejects a proposed accommodation, suggest others.
6. If an employer/employee suggests an accommodation that your client does not want or does not believe will work, suggest that your client try it anyway as a show of good faith. Courts tend to sympathize with employers who offer accommodations that are rejected, and with employees whose requests are rejected without any serious consideration. Of course, if your client is going to try out a proposed accommodation and it is not effective, be sure to document with as much detail as possible, how and why it is not effective.
7. Document. Document. Document. This is a necessary corollary to number 4. Not only must you act reasonably, you must be able to show that you did so. If employer gave the employee several extra opportunities to “get it right,” or modified its work rule to afford the worker a better chance to succeed at the job, there should be paperwork which shows just how reasonable you’ve been. Make sure your employee client puts all requests for accommodations in writing and keep copies.
8. If your client is a union member, get the union’s support up front for the reasonable accommodation requested. In a case where the accommodation arguably violates the union contract, having the union’s support may make the difference between winning and losing the case.
9. Look for accommodations available from outside sources which are at no cost to the employer, e.g., job coaches from the Massachusetts Rehabilitation Commission, computer equipment from the Massachusetts Commission for the Blind.
10. Locate expert witnesses with practical information about types of reasonable accommodations, e.g., rehabilitation specialist, occupational medicine specialists. Great resource is the Job Accommodations Network: www.jan.wvu.edu.
11. Once the need for a reasonable accommodation is raised, counsel your client to engage in the informal interactive process in good faith. Do not let your client be the one responsible for its breakdown.

Disability Law Center, Inc. 11 Beacon Street, Suite 925 Boston, Massachusetts 02108 (617) 723-8455 Voice (800) 872-9992 Voice (617) 227-9464 TTY (800) 381-0577 TTY (617) 723-9125 Fax

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