By Susan Walker
In the movie Cool Hand Luke, Paul Newman’s famous character observed at the film’s climax, “What we got here is a failure to communicate.” A recent case from the Tenth U.S. Circuit Court of Appeals (which covers Oklahoma) reminds employers that when the Americans with Disabilities Act (ADA) interactive process is involved, open, prompt, and clear communication with the disabled employee is critical. It can demonstrate a good-faith effort on the part of the employer, help determine whether a reasonable accommodation exists, identify a mutually understood outcome, and pre¬clude the employee from preserving issues of fact for trial.
To establish a claim under the ADA, a disabled employee must show she is able to perform the essential functions of the job with or without reasonable accommodation. Failure to reasonably accommodate an employee constitutes discrimination unless the accommodation poses an undue hardship on the employer’s operations. Sometimes the only reasonable accommodation is obvious. More often than not, however, the employer and employee must engage in an interactive process to determine possible options.
When the employer is unable or unwilling to offer an appropriate accommodation, the Equal Employment Opportunity Commission and federal courts look at each party’s reasonableness and good-faith effort. More practically, the interactive process is an opportunity for the employer to identify and quantify the employee’s precise limitations and force her to put all of her suggestions on the table for consideration. It’s also an opportune time to explain business concerns to the employee (which she may not be in a position to know) and persuade her to accept a solution that may not be her preferred choice but that she will understand. It’s important to remember that in terms of effective accommodations, it’s the employer — not the employee — that is entitled to make the final decision.
Counselor gets schooled
Terrianne Lowe was a high-school counselor and certified science teacher who has worn leg braces most of her life as a result of childhood polio. According to her physician, walking and standing for long periods has accelerated the deterioration of her leg muscles.
In fall 2005, the school decided to reassign Lowe from her position as a counselor to teaching science in the classroom. In May 2006, a temporary science teacher’s contract wasn’t renewed, creating a vacant high-school science teacher position the following school year. All of the science classrooms at the school were laboratories. The departing teacher’s classroom was one of the smallest and most crowded at the school and, as configured at the time, wouldn’t accommodate a teacher confined to seated height. Similarly, because of the narrow aisles between the lab tables, a walker or wheelchair couldn’t be accommodated.
What happened next illustrates the way assumptions, delays, and a lack of clear communication can derail the interactive process. Lowe met with the head of the science department, who had been told by a member of the school board that the temporary teacher’s contract wasn’t renewed so that Lowe could have the job. Given the circumstances, both the department head and Lowe assumed she would be assigned to the tiny classroom, so together they compiled a list of necessary accommodations and sent it to school principal Jan Chadwick, the school district’s HR director, and Terry Simpson, the school superintendent.
However, because neither the HR director nor Simpson knew that all science classrooms were lab classrooms, they told Chadwick that no accommodation would be made and that she should assign Lowe to a nonlab classroom. Chadwick conveyed the information to Lowe but didn’t clarify how she intended to handle the lack of a nonlab classroom. The school year ended, and Lowe received no additional information over the summer. As a result, she assumed her only option in the fall would be to teach high-school science in the existing lab.
An uninformed meeting
Almost everyone in question — Lowe, Chadwick, the head of the local teachers’ association, and the head of the science department — assumed Lowe would be assigned to the vacant position. Two weeks before school started, Lowe and representatives of the state and local teachers’ associations met with Simpson. He wasn’t prepared for the meeting, hadn’t reviewed the list of suggested accommodations, and still didn’t understand that all science classes at the high school were labs. No one from the school’s administration was included in the meeting.
The differing accounts of what happened at the meeting form the crux of the case. Simpson never told Lowe that she wouldn’t be reassigned to the vacant position and the classroom associated with it. He claims he told her there was a “possibility she would not be in lab science,” but Lowe denies the statement was ever made. Simpson also claimed that at the time, he was “considering” reassigning Lowe to a junior-high classroom without a lab but admits he never told anyone.
One thing was clear: Lowe was unhappy with the meeting, resigned, and sued the school district for failing to accommodate her under the ADA and forcing her to quit. The school district argued that the interactive process had not yet concluded because teachers can (and frequently do) get reassigned right up to the first day of class. Thus, Lowe had, by her own actions, foreclosed the possibility of accommodation via reassignment. The court disagreed, finding there were sufficient facts to allow her to “reasonably conclude” she would be assigned to teach in the small high-school lab without accommodation. Whether a reasonable person in her position would have no other choice but to resign was an issue left for the jury to decide. Lowe v. Independent School Dist. No. 1, 22 AD Cases (BNA) 1634 (10th Cir., 2010).
Tips for employers
What can you learn from this case? Serious effort and frequent communication are critical to a solid interactive process. To ensure the interactive process is successful, consider taking the following steps:
Make sure all relevant players are fully included and the ultimate decisionmaker has all the facts. If the principal and department head had been at the August meeting, they could have explained the classroom situation to the superintendent. That would have ensured he wasn’t operating under false assumptions regarding labs at the high school and ultimately moved the discussion toward the real issue — accommodation.
Keep the process moving without undue delay, and define milestones. In this case, the date that a firm decision could be expected was never communicated to the employee, leaving her to become angrier as the weeks went by, and the superintendent’s failure to promise alternatives following the August meeting exacerbated the situation. As this case shows, the employee doesn’t always have to wait for the employer to “finish” the process or expressly request a final decision.
Document options and outcomes. Hindsight is 20/20. A working list of job requirements, exact limitations to be accommodated, alternatives, and decisions can go a long way toward showing the reasonableness of the employer’s actions and thought process if the employee claims to have been in the dark or later second-guesses the outcome.
When it comes to the interactive process, it’s in your best interest to fully communicate with the employee. A half-baked attempt can land you in front of a jury, while a thorough and well-documented interaction can provide you with a strong defense against a failure-to-accommodate claim.