Bob Gregg, partner in Boardman Law Firm, and Cliff Bobholz, an associate,share their roundup of diversity-related legal issues. They can be reached at rgregg@boardmanlawfirm.com and cbobholz@boardmanlawfirm.com, respectively.
ADA accommodations must be reasonable and fit operational needs. An employee with a migraine condition sued her employer after her requested accommodation of moving to another city and working from home was denied. Her physician stated that some changes to her office environment and a work-schedule modification could adequately accommodate the condition. The employer offered the office environmental changes and schedule modification and allowed her to work from home part of the time (part of the schedule modification). The employee, however, insisted that her proposed accommodation was “more reasonable,” and she proceeded to move to the other city. She was subsequently discharged. In Porter v. Environmental Protection Agency (D. DC, 2009), the court dismissed the case. It is noted that the ADA and the Rehabilitation Act, which prohibits discrimination on the basis of disability in programs conducted by federal agencies, require a reasonable accommodationnot the employee’s preferred accommodation. The employee’s focus on the “more reasonableness” of her proposal was misplaced; she presented no evidence that her doctor’s recommendations were not workable. Moreover, her employer was entirely reasonable in selecting to follow the doctor’s advice and the accommodation that best fit its operational needs.
Interactive process not necessary when no accommodations exist. The ADA requires the employee and employer to engage in interactive dialogue and exploration to consider reasonable accommodations, to enable an employee with a disability to perform a job or maintain employment in an available alternative position. But no exploration is required when no accommodation is available. In McBride v. Bic Consumer Products Mfg. Co. (2nd Cir., 2009), the employee’s respiratory sensitivity to the chemicals in her work rendered her unable to continue the present job. She requested the accommodation of being placed in a different job in a different location where there were no chemicals. However, no such job was open. Since the ADA does not require either the creation of a new job or bumping existing employees out of their jobs to make way for an employee with a disability, no accommodation existed. Therefore, the court found that there was no requirement for the company to further engage in a meaningless exercise of discussing a nonexistent position.
