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Under the ADA, How Interactive Must a Process Be?

Posted by Frank Steinberg | Oct 08, 2009 | 0 Comments

Today's sojourn through the wonderful world of the Americans with Disabilities Act takes us north on Route 95 to our sister state of Connecticut, whence springs a decision of the Second Circuit in McBride v. Bic Product Manufacturing.  It's not a ground breaking case.  In fact, it's notable for just two things.  First, it provides a well-organized refresher for management and employees alike on how disability cases must be proved.  Second, it pulls the Second Circuit into line with other federal circuits (New Jersey's own Third included) on a question of how extensive is the employer's obligation to engage in an "interactive process" with the employee to explore what measures might reasonably accommodate the employee's disability.  We are going to focus on this second issue. 

McBride suffered from a respiratory ailment.  Bic's workplace was industrial, and included exposure to solvents and fumes.  McBride informed Bic of her need for an accommodation.  Bic proposed supplying her with a respirator, which McBride rejected.  The discussion of accommodation stopped there.  Bic apparently made no other suggestions, nor did McBride.  McBride's employment was terminated thereafter, and she sued for disability discrimination.

Among her claims against Bic, McBride argued that Bic failed to engage in the interactive process.  The court rejected this argument, not on the basis that a sufficient discussion took place (it apparently didn't), but on the basis that even if the discussion had taken place it would have been fruitless, since there was no reasonable accommodation available that would have allowed McBride to continue to work.  So we come back to our favorite sports analogy: no harm, no foul.  And therefore, the failure to engage in the interactive process does not automatically create liability under the ADA.

Lest managers and HR types cheer too quickly, however, there is a caveat.  This does not give employers free rein to ignore the interactive process requirement when they reasonably determine that no reasonable accommodation exists.  Among other things the court noted that failure to engage in the interactive process at all may be prima facie evidence that the employer violated the ADA.

In short, if you're an employer, engage in the process in good faith.  If you're an employee who wants to sue, you'd better be able to prove that you could have been accommodated if only the employer had discussed the issue reasonably.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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