Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§12111-12117, is unique among workplace anti-discrimination laws because it not only prohibits differential treatment based on a protected characteristic (disability) but, in some circumstances, also compels an employer to treat an individual with a disability differently than nondisabled employees. Section 12112(a) of the ADA sets out the rule prohibiting disability discrimination in the workplace:

(a) General rule. No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Title 42 U.S.C. §12112(a) (hereinafter the disparate treatment prohibition) is consistent with the common understanding of the term “discriminate,” which is to distinguish or differentiate based on a particular characteristic.[1] It is the taking of an action (e.g., termination, promotion, etc.), and doing so based on disability, that constitutes discrimination against a qualified individual on the basis of disability.

However, the ADA also defines the term “discriminate against a qualified individual on the basis of disability” to include not taking particular action, specifically “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee” unless the employer “can demonstrate that the accommodation would impose an undue hardship.”[2] Under this “accommodation mandate,” an employer has an “affirmative obligation to make reasonable accommodation.”[3]

This article addresses the differences between the ADA’s disparate treatment prohibition and accommodation mandate – the “interactive process” under the ADA’s accommodation mandate – and potential missteps in carrying out the accommodation process.

DIFFERENCES BETWEEN THE ADA’S DISPARATE TREATMENT PROHIBITION AND ACCOMMODATION MANDATE

There are several differences between the ADA’s disparate treatment prohibition and accommodation mandate.

Different Definitions of ‘Discriminate ... on the Basis of Disability’

Under the ADA’s disparate treatment prohibition, the employer “discriminate[s] against a qualified individual with a disability” when it takes an action affecting the employee’s terms, conditions and privileges of employment and does so on the basis of the employee’s disability.[4] An employer does not violate the ADA’s disparate treatment prohibition by failing to take some action affecting the terms, conditions or privileges of an individual’s employment or by taking such action but not on the basis of disability.

In contrast, an employer runs afoul of the ADA’s accommodation mandate by failing to take an action – that is, by “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.”[5]

Different Definitions of ‘Disability’ Apply

An individual has a “disability” under the ADA if they have one or more of the following: 1) an “actual disability,” defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual”; 2) a record of such an impairment; and/or 3) the employer regards the employee as having such an impairment.[6] To make a claim under the ADA’s disparate treatment prohibition, the plaintiff may rely on any or all of these three definitions of “disability.”[7] In other words, the ADA’s disparate treatment mandate prohibits an employer from “discriminat[ing] against a qualified individual on the basis of disability” notwithstanding whether the employee has a “disability” because they have an actual “physical or mental impairment that substantially limits one or more major life activities,” because they have a “record of such an impairment” and/or because the employer “regards” them “as having such an impairment” (even if they do not actually have such an impairment).[8]

In contrast, a claim for failure to accommodate cannot be based on the “regarded as” definition set out in 29 C.F.R. §1630.2(g)(1)(iii).[9] Instead, the employer must show they have an actual disability,[10] a record of a disability[11] or both.[12]

A Failure-to-Accommodate Claim Does Not Require Proof of Discriminatory Intent

Because the ADA’s disparate treatment prohibition only prohibits discrimination “on the basis of disability,” there must be a nexus between the disability and the employment action.[13] This nexus is satisfied by proving the employer acted with discriminatory intent.[14]

In contrast, the ADA’s accommodation mandate imposes on the employer an “affirmative obligation to make reasonable accommodation.”[15] It is the employer’s failure to offer a reasonable accommodation to an otherwise qualified individual with a disability that constitutes unlawful discrimination.[16] Because it is the employer’s failure to meet its statutory obligation to “make reasonable accommodation” that results in a violation, there is no need to show the employer acted with discriminatory intent.[17] “Thus, the employee need present no evidence, whether direct or circumstantial, of discriminatory intent in order to succeed on a failure-to-accommodate claim.”[18]

Element of an Adverse Action

Unlike a claim of disparate treatment under the ADA’s disparate treatment prohibition, claims for failure to accommodate do not include the requirement that the employee suffered an adverse action.[19] In Exby-Stolley, the 10th Circuit explained that including an adverse action as a necessary element to a failure-to-accommodate claim would significantly frustrate the purposes of the ADA because:

Employers would not be held accountable for failing to reasonably accommodate their disabled employees so long as those employers did not also subject their employees to an adverse employment action. How could the ADA's reasonable-accommodation mandate meaningfully help to ensure that qualified individuals with disabilities who have been denied a reasonable accommodation can "obtain the same workplace opportunities that those without disabilities automatically enjoy," US Airways, 535 U.S. at 397, and "enjoy the same level of benefits and privileges of employment" as their peers without disabilities, 29 C.F.R. pt. 1630, app. § 1630.9, if the statute is construed as providing such disabled individuals a failure-to-accommodate remedy only when their employers also have subjected them to an adverse employment action? To ask the question is to answer it: the ADA could not meaningfully effectuate its full-participation and equal-opportunity purposes, if so interpreted. And we thus decline to construe the statute in this way.[20]

Different McDonnell Douglas Formulations

Courts traditionally have analyzed disparate treatment claims under the three-step formulation first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the three-part McDonnell Douglas formulation test, the plaintiff bears the initial burden to establish a prima facie case of disparate treatment, which, if shown, gives rise to the presumption that the challenged adverse action was the result of unlawful discrimination.[21] The burden then shifts to the employer to rebut the plaintiff’s prima facie case by articulating a legitimate, nondiscriminatory reason for the adverse employment action.[22] Once the first two steps are satisfied, the burden shifts back to the employee to proffer sufficient evidence allowing a jury to find that the employer’s articulated explanation is pretextual.[23] This burden-shifting framework “is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.”[24]

In contrast, because discriminatory intent is not an element of a failure-to-accommodate claim, the traditional McDonnell Douglas formulation is inapplicable. Instead, courts typically evaluate a failure-to-accommodate claim under a modified McDonnell Douglas burden-shifting framework.[25]

The purpose of a burden shifting approach is a bit different in an ADA Failure to Accommodate case. In such a case, the Congress has already determined that a failure to offer a reasonable accommodation to an otherwise qualified disabled employee is unlawful discrimination.[26] Thus, we use the burden-shifting mechanism, not to probe the subjective intent of the employer, but rather simply to provide a useful structure by which the district court, when considering a motion for summary judgment, can determine whether the various parties have advanced sufficient evidence to meet their respective traditional burdens to prove or disprove the reasonableness of the accommodations offered or not offered.[27]

Under this modified framework, the plaintiff bears the initial burden to demonstrate a prima facie case consisting of evidence that they 1) are disabled, 2) are otherwise qualified and 3) requested a plausibly reasonable accommodation.[28] If the plaintiff makes a showing on all three elements, the burden shifts to the employer to either 1) conclusively rebut one or more elements of the plaintiff’s prima facie case or 2) establish an affirmative defense such as undue hardship or another affirmative defense available to the employer.[29]

Required Participation in the ‘Interactive Process’

The ADA’s disparate treatment prohibition can be boiled down to the following formula: adverse action + protected characteristic (disability) + unlawful intent (on the basis of disability).[30]

Since disparate-treatment claims concern discrimination in the form of an action, it naturally follows that a plaintiff alleging such a claim of discrimination must establish, inter alia, that there was both an employment action and that the action was undertaken with an intent that made it discriminatory, or phrased differently, that the action was taken "because of the disability."[31]

Under the disparate treatment prohibition, an employer is not required to take any particular action or follow a particular process to avoid engaging in “discrimination on the basis of disability.” While an employer’s failure to take certain steps, such as following progressive discipline, may constitute circumstantial evidence of the employer’s discriminatory intent, the failure to take action is not itself a violation of the law.

In contrast, under the ADA’s accommodation mandate, the employer has an affirmative duty to “mak[e] reasonable accommodations to the ... limitations of an ... individual with a disability.”[32] To facilitate the reasonable accommodation the employer is required to make, the federal regulations implementing the ADA envision an interactive process in which the employer and employee are required to participate.[33] Under this interactive process, the employer and employee are obligated to take certain steps necessary to facilitate the employer’s duty to “make reasonable accommodations.” The consequences of failing to participate in the interactive process could be severe and largely depend on which party failed to participate and why.

The remainder of this article addresses the requirements of the ADA interactive process and common missteps to avoid.

THE ADA INTERACTIVE PROCESS

The interactive process is a good-faith dialogue between the employer and employee designed to identify possible reasonable accommodations that would allow the employee to perform the essential functions of their position.[34] “The obligation to participate in this interactive process is inherent in the statutory requirement that the employer offer a disabled, but otherwise qualified employee a reasonable accommodation.”[35] Good-faith participation by both parties is critical because “each side will possess different information, all of which is critical to determining whether there is a reasonable accommodation that might permit the disabled employee to perform the essential functions of her job.”[36]

Purpose and Goals of the ADA Interactive Process

The purpose of the ADA interactive process is to identify what, if any, possible reasonable accommodations are available that will allow the employee with a disability to perform the essential functions of the position they hold or desire.[37] In order to identify possible reasonable accommodations, the ADA interactive process should answer two questions: 1) What are the employee’s precise limitations resulting from the disability, and 2) what, if any, potential reasonable accommodations could overcome those limitations?[38] Participation by both parties is imperative because each side will possess different information, all of which is critical to determining whether there is a reasonable accommodation that might permit the employee with a disability to perform the essential functions of their position (or the position at issue, as discussed later).[39]

The Employer Must Attempt To Make Reasonable Accommodation Before the Employee Can Be Deemed Not ‘Otherwise Qualified’

The ADA’s accommodation mandate only requires an employer to make reasonable accommodations to the known mental or physical limitations of an “otherwise qualified individual with a disability.”[40] Does this mean the employer can avoid attempting to accommodate by claiming the employee is not “qualified”? No. The ADA defines “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”[41] Because “qualified individual” includes an individual who can only perform the essential functions with reasonable accommodation, the employer must at least attempt to provide a reasonable accommodation before the employee can be deemed not “otherwise qualified.”[42]

Triggering the Interactive Process

The ADA interactive process usually begins with the employee making a request for accommodations for their disability.[43] Under most circumstances, the employer’s duty to provide reasonable accommodations, or even to participate in the ADA interactive process, is only “triggered” when the employee makes an adequate request for accommodation.[44]

So what is an adequate request for accommodation? Quite simply, it is notice to the employer that the employee needs some adjustment in their job because of a medical condition.[45] A request for accommodation need not be in writing, come from the employee directly or use any particular words such as “reasonable accommodation.”[46]

Who Gets To Choose Among Possible Reasonable Accommodations?

When there are multiple reasonable accommodations available, the employer – not the employee – gets to choose which to provide. As long as the accommodation allows the employee to perform the essential functions of their position, the employer has complied with its obligations, even if the employee would have preferred a different reasonable accommodation.[47]

What Happens if No Accommodations Exist That Would Allow the Employee To Perform the Essential Functions of Their Position?

It may be that after the parties engage in a mutual dialogue in good faith (i.e., the interactive process), no reasonable accommodations can be identified that would allow the employee to perform the essential functions of the position they hold. However, the inquiry does not stop there. The employer may be required to offer the employee with a disability reassignment to a vacant position.[48] A “vacant position” includes not only positions that are at the moment vacant but also positions the employer reasonably anticipates will become vacant in the fairly immediate future.[49] However, a “vacant position” does not include a promotion.[50]

Remember that the ADA requires an employer to make reasonable accommodations to an “otherwise qualified employee with a disability.”[51] The term “qualified” means the “individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.”[52] In Smith v. Midland Brake, Inc., the 10th Circuit held that a “reasonable accommodation” under the ADA may include reassignment from the employee’s current job to a “vacant position” for which the employee can perform the essential functions of with or without accommodation.[53] To determine whether reassignment is a reasonable accommodation, the employer and employee may be required to engage in the same interactive process that applied to the position the employee held at the time they sought accommodation.[54]

CONCLUSION

This article certainly does not address every issue relevant to ADA litigation. Many issues – such as how to identify an “essential function” or rebut a claim of “undue hardship” – are worthy of their own articles. However, I hope the article does provide some guidance in navigating the less-than-clear accommodation process.

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ABOUT THE AUTHOR

Amber L. Hurst is the current president of the Oklahoma Employment Lawyers Association, the Oklahoma affiliate leader to the National Employment Lawyers Association and the past chair and vice chair of the OBA Labor and Employment Law Section. Ms. Hurst is admitted to practice in Oklahoma; the federal courts for the Western, Eastern and Northern districts of Oklahoma; the 10th Circuit Court of Appeals; the U.S. Court of Federal Claims; and the United States Supreme Court.

 

 

 

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ENDNOTES

[1] See, e.g., Merriam-Webster Dictionary, defining “discriminate” as “to mark or perceive the distinguishing or peculiar features of,” to “distinguish” or “differentiate,” and “to distinguish by discerning or exposing differences.” www.merriam-webster.com/dictionary/discriminate; see also Black's Law Dictionary (11th ed. 2019), defining “discrimination” as “differential treatment.”

[2] 42 U.S.C. §12112(b)(5)(A).

[3] Exby-Stolley v. Bd. of Cty. Comm'rs, 979 F.3d 784, 795 (10th Cir. 2020), emphasis in original.

[4] 42 U.S.C. §12112)(a) (“No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”) (emphasis supplied).

[5] 42 U.S.C. §12112(b)(5)(A), emphasis added.

[6] 29 C.F.R. §1630.2(G)(1), (2).

[7] 29 C.F.R. §1630.2(g)(3).

[8] 29 C.F.R. §1630.2(g)(1), (2).

[9] 29 C.F.R. §1630.2(g)(3).

[10] §1630.2(g)(1)(i).

[11] §1630.2(g)(1)(ii).

[12] 29 C.F.R. §§1630.2(g)(3) and (k)(3).

[13] Punt v. Kelly Servs., 862 F.3d 1040, 1048 (10th Cir. 2017).

[14] Id.

[15] Exby-Stolley, 979 F.3d at 795, emphasis in original.

[16] Smith v. Midland Brake, Inc., 180 F.3d 1154, 1178 n.12 (10th Cir. 1999), explaining.

[17] Exby-Stolley, 979 F.3d at 798.

[18] Punt, 862 F.3d at 1048.

[19] Exby-Stolley, 979 F.3d at 798-99.

[20] Id. at 799, emphasis in original.

[21] Gossett v. Okla. ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001).

[22] Id.

[23] Smothers v. Solvay Chems., Inc., 740 F.3d 530, 539 (10th Cir. 2014).

[24] Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 n.8, 101 S. Ct. 1089, 1094 (1981).

[25] Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1204 (10th Cir. 2018); see also Smith, 180 F.3d 1154 at 1178 n.12, explaining the purpose of the modified framework.

[26] See 42 U.S.C. §12111(b)(5)(A) ("the term ‘discriminate' includes ... not making reasonable accommodations.”).

[27] Emphasis in original.

[28] Id.

[29] Id.

[30] See Exby-Stolley, 979 F.3d at 798.

[31] Emphasis in original.

[32] 42 U.S.C. §12112(b)(5)(A).

[33] 29 C.F.R. §1630.2(o)(3); Aubrey v. Koppes, 975 F.3d 995, 1009 (10th Cir. 2020); EEOC v. C.R. Eng., Inc., 644 F.3d 1028, 1049 (10th Cir. 2011).

[34] Aubrey, 975 at 1006-07.

[35] Id. at 1007.

[36] Id.

[37] Id.

[38] 29 C.F.R. §1630.2(o)(3).

[39] Aubrey, 975 F.3d at 1007.

[40] 42 U.S.C. §12112(b)(5)(A).

[41] 42 U.S.C. §12111(8).

[42] Wilkerson v. Shinseki, 606 F.3d 1256, 1265 (10th Cir. 2010).

[43] C.R. Eng., Inc., 644 F.3d at 1049.

[44] Id.

[45] Foster v. Mt. Coal Co., LLC, 830 F.3d 1178, 1188 (10th Cir. 2016).

[46] Id.

[47] Norwood v. UPS, 57 F.4th 779, 787-88 (10th Cir. 2023).

[48] Midland Brake, Inc., 180 F.3d at 1154.

[49] Smith, 180 F.3d at 1175.

[50] Id.

[51] 42 U.S.C. §12112(b)(5)(A).

[52] 29 C.F.R. §1630.2(m).

[53] 180 F.3d 1154 (10th Cir. 1999).

[54] Id.