By Eric B. Meyer
This is my son’s first year playing tee ball. The rules, in case you’re not familiar with them, are simple:
- Everybody hits;
- Everybody (eventually) rounds the bases;
- Everybody scores.
Some games, my son wants to lead off. Some games, he wants to hit last.
Ultimately, it doesn’t matter where he hits. The coach can place him anywhere in the batting order because he will hit, he will round the bases, and he will score.
How the ADA is similar to tee ball
The Americans with Disabilities Act is similar in that respect. It requires an employer to accommodate an employee with a disability if doing so will not create an undue hardship for the employer and will allow that employee to perform the essential functions of the job.
The ADA regulations include a non-exhaustive list of reasonable accommodations. Does the employee get to choose which one? Sure, the employee can express his/her desire. But, ultimately, the employee should get one that is reasonable, whether it is the employee’s choice — or not.
A recent case reflects this. In Bunn v. Khoury Enterprises, Inc., Mr. Bunn, who is disabled (visual impairment), sought an accommodation to allow him to perform his essential job functions. So, the employer restructured the employee’s job. Since this was not what Mr. Bunn wanted, he sued, claiming a failure to accommodate.
It’s all about acting reasonably
The lower court granted summary judgment to the employer and, on appeal, the Chicago-based Seventh U.S. Circuit Court of Appeals affirmed, because the job restructuring, while not the employee’s preference, nonetheless allowed the employee to perform the essential functions of the job:
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In short, it was exactly the kind of accommodation envisioned by the regulations applicable to the ADA….the undisputed facts show that Khoury did what it was required to do by law….In this area of the law, we are primarily concerned with the ends, not the means…Bunn’s apparent displeasure with the way in which Khoury decided on that accommodation, or with its failure to provide the exact accommodation he would have preferred, is irrelevant.”
Does this mean that employers should resort to the my-way-or-the-highway approach to workplace accommodations? Certainly not. Frequently, providing the employee with a preferred accommodation will not increase expense or inconvenience and, instead, will satisfy the employee.
And although the Seventh Circuit underscored that an employee will not prevail on a “failure-to-accommodate” ADA claim by merely showing that the employer failed to engage in an interactive process with the employee or that it caused the interactive process to break down, an employer that goes through the interactive process should have an easier time establishing it acted reasonably when responding to an employee’s request for accommodation.
Because, after all, an employer just needs to act reasonably.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.