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Reasonable Accommodation Under The ADA: Court Sheds Light On Notice And Interactive Process Requirements

The Seventh Circuit recently issued an opinion providing some new guidance regarding the interactive process under the Americans with Disabilities Act (“ADA”). Specifically, the court emphasized that the interactive process was just that—a process and not a singular decision which could not be updated or altered.

In Cloe v. City of Indianapolis, the Seventh Circuit reviewed the ADA claim of Nancie Cloe, an Unsafe Building/Nuisance Abatement Project Manager for the City of Indianapolis. During her employment, Cloe was diagnosed with multiple sclerosis (“MS”). Prior to her diagnosis, Cloe arranged for sweeps of abandoned, derelict, and unsafe properties. Cloe would walk the neighborhood and interview community members about their concerns. Cloe then would monitor the work of various City agencies and report their progress. Based on her MS diagnosis, Cloe’s doctor restricted her to part-time desk duty. The doctor recommended that Cloe be provided with nearby parking and a personal printer.

After a job restructuring, Cloe’s new supervisor expressed concern with Cloe’s written reports, citing poor spelling, bad grammar, and incorrect addresses on demolition requests. Cloe was placed on a performance improvement plan to address her inaccurate written work, and for issues with dishonesty and insubordination. After Cloe failed to improve, her employment was terminated.

Cloe sued the City, claiming that the City failed to reasonably accommodate her by: (1) failing to timely provide a nearby parking space; (2) failing to timely provide her with a printer close to her office; and (3) failing to help proofread her work. In addressing each allegation, the Seventh Circuit emphasized that accommodation is a process through which a solution ultimately evolves. There is no requirement that the employer immediately find the one-and-only accommodation.

The City was granted summary judgment on all counts. On appeal the Seventh Circuit affirmed summary judgment with respect to Cloe’s failure to accommodate claim.

She Wants What She Wants, When She Wants It

Cloe’s medical restrictions stated that “specified parking is preferred if possible” and “if required to park a distance the patient will walk back to office at her own pace.” Based on these restrictions, the City assigned Cloe parking in a lot directly across from her office building. However, Cloe’s doctor later wrote a second note stating that she could not walk long distances and that she needed to park at her office building. The City offered Cloe a parking pass so that she could use an unassigned space in her building. Once another City employee (who had a permanent assigned parking place) left his position two months later, Cloe received a permanent underground parking spot at her office building.

With respect to Cloe’s request for a printer in her office, it took 2-4 weeks to provide the printer after Cloe’s request. During that time, a supervisor had to approve the request, and the City eventually had to take the printer away from another employee to give it to Cloe. Cloe claimed that the City should have bought a new printer or temporarily loaned one instead, and the City’s failure to do so was unreasonable delay.

Accommodation Is a Process, Not a “One-Off”

The Seventh Circuit held that except in extreme circumstances (such as where mental illness or severe cognitive disability prevent the employee from giving notice) an employer only will be responsible for reasonably accommodating the needs of an employee when the employee has given specific notice that accommodation may be needed. Additionally, the court found that an employer will not have violated the ADA just because it revises an offered accommodation several times until a successful accommodation is found.

Although Cloe admitted that the permanent parking space met her needs, she contended that the “winding path the City took to get there was unreasonable.”. In essence, Cloe claimed that the delays in assigning this parking place showed that the City did not act reasonably to accommodate her disability. The Court disagreed with Cloe, stating that “Reasonable accommodation under the ADA is a process, not a one-off event.” The employee has “the initial duty to inform the employer of the disability.” If the employee has not met her initial duty to inform the employer that she has a disability and desires an accommodation, then the employer will not be required to enter into the interactive process. Only in certain circumstances, such as a severe cognitive disability or mental illness, will the employer be required to anticipate the need for a reasonable accommodation. Therefore, it is up to the employee to start the interactive process.

In this case, the Court found that the City met its obligation. After being informed of Cloe’s needs, the City provided her with parking at a lot closer to the building. When that solution did not work out, the City gave Cloe a visitor’s pass which allowed her to park under the building and on nearby streets. When this solution did not work out, the City gave her a permanent underground parking spot once one opened up. The court stated that “this is exactly the sort of ‘interactive process’ . . . that the ADA calls for.”

As for the printer, the Court noted that the fact that Cloe’s printer eventually had to be taken away from another employee suggested “that the City didn’t have a lot of extra printers lying around.” Additionally, “[a] responsible government is entitled to take time to evaluate alternatives before spending taxpayer money.” The court emphasized that it is the employer’s decision to determine what accommodation is reasonable—the employer is not required to provide the particular accommodation requested by the employee.

Notice Is Required

Cloe argued that her shoddy written work was a symptom of her disability and that the City failed to provide her with enough proofreading assistance. However, Cloe failed to provide any evidence that she asked for an accommodation regarding her written work. As discussed above, an employee has an initial duty to tell her employee that she needs accommodation. In this case, Cloe never told the City that her poor written work was related to her disability or that she required an accommodation. Thus, the Seventh Circuit also dismissed this claim.

The Take-Away

In most circumstances, an employer only has an obligation to accommodate an employee once that employee has provided notice of the need for a reasonable accommodation. Despite this notice requirement, employers should request documentation of the severity of any work restrictions once they receive notice of a medical condition. From this information, the employer should question the employee as to whether a reasonable accommodation may be necessary. When entering into the interactive process, employers should take the following proactive steps:

  • Be clear in correspondence to health care providers that you are requesting a comprehensive list of all restrictions.
  • Consider any employee accommodation suggestions.
  • Remember that you are not required to accept the employee’s (or the doctor’s) accommodation suggestion.
  • If you reject an accommodation request, be prepared to offer an alternative, effective accommodation.
  • Back up your reasoning for offering an alternative accommodation.
  • Follow through and keep the lines of communication open and the process moving.
  • Remember that this is a process—emphasize to your employee that there may be some trial and error in finding the appropriate accommodation and that patience and feedback may be needed in arriving at an accommodation.

The Seventh Circuit has provided a valuable “safe harbor” to employers, stating that an employer that is engaged in the interactive process will not be penalized if it takes a few tries before finding the appropriate accommodation. However, an employer must prove that the accommodations provided, whether successful or not, appear to be legitimate and appropriate and arrived at through the interactive process.

If you have any questions regarding this article, please contact your Davis & Kuelthau attorney.