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Reasonable accommodation of disability - #27
by Ross Runkel at LawMemo
Let's assume an individual has a disability. That means she (1) has a physical or mental impairment that (2) substantially limits a (3) major life activity. (Note that she can either (a) actually have a disability, or (b) have a record of being disabled, or (c) be regarded as being disabled.)
The individual also must be "qualified" for the job in question, which means she is able to perform essential functions with or without a reasonable accommodation. And an employer has an affirmative obligation to provide a reasonable accommodation unless that would be an undue hardship for the employer.
The burden will be on the employee (or applicant) to show that a reasonable accommodation exists, and then the burden will shift to the employer to show that the accommodation would impose an undue hardship.
Identifying a reasonable accommodation requires a particularized inquiry into the exact nature of the individual's disability and the details of the job in question. One must not generalize because not every hearing impaired person is the same, individuals who use wheel chairs are not all the same, and so on. The focus has to be on the individual, and not on disabled people generally or on hearing impaired people generally.
One way to accommodate is to break the job down into essential and non-essential functions. The ADA says a person has to be able to do the essential functions, so an employer is not going to be required to change those functions or do away with them. However, and employer may be required to change or eliminate non-essential functions.
First look to see whether the individual can perform the essential functions without any other accommodation. If so, she is qualified. If not, then look to see whether she could perform the essential functions with an accommodation, and whether that accommodation is a reasonable one. (If there is more than one accommodation that is reasonable, the employee does not have a legal right to pick the best one.)
Undue hardship. If the employer proves that an accommodation (even a reasonable one) would impose an undue hardship, then the employer does not have to make that accommodation. Factors to consider include the cost of the accommodation, financial resources of the employer and of the facility, the impact on the employer's operations, and the impact on other employees.
Interactive process. According to the EEOC, the employee and employer should engage in an interactive process. The employee should first request an accommodation and supply whatever personal information is needed. The employee should also suggest any accommodation she knows about. Then the employer should respond with suggestions and ideas. Failure of the employer to do so can create a presumption that the accommodations suggested by the employee were reasonable. Likewise, if the employee does not cooperate in this process there can be a presumption of unreasonableness.
Direct threat to health or safety. An individual is not qualified if she creates a direct threat to the health or safety of others or to herself.
Coming next: Harassment #28: Employment Law 101
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
