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Friday, May. 31, 2002

Among judges and lawyers, the Americans With Disabilities Act ("ADA") is hot. One measure: in this year's U.S. Supreme Court Term, out of a total of only 79 cases, there are 4 that focus on the ADA.

A prominent portion of the ADA deals with rules in the workplace, and the heart of these workplace provisions, in our view, is the requirement that an employer make "reasonable accommodations" to its disabled employees that would allow the employees to perform the essential functions of their jobs. (An example of a reasonable accommodation might be, for instance, purchasing an ergonomic chair for a disabled employee with a back problem).

Until last month's decision in US Airways v. Barnett, the Court had never interpreted this reasonable accommodation requirement. The Court in Barnett ruled that the ADA's reasonable accommodation obligation does not ordinarily require that an employer award to a disabled employee a job that he is not entitled to hold under a seniority system established by the employer for assigning various jobs. Unlike accommodations that merely cost the employer some money - such as the ergonomic chair - deviations from seniority systems, the Court observed, interfere with important and settled expectations of other employees.

But even as it resolved one important issue, the Supreme Court passed up another related and important question that was presented in the Barnett case in the lower courts: to what extent does the ADA's obligation of accommodation contain a procedural element, requiring the employer to engage in an informational give-and-take with an employee to explore potential reasonable accommodations?

What Is the Interactive Process?

The term "interactive process" derives not from the ADA statute itself but from federal regulations formulated by the Equal Employment Opportunity Commission (EEOC), the agency charged with implementing the ADA's employment aspects. In those regulations (the cite for which is 29 CFR S 1630.2(o)(3)), the EEOC advises:

To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of accommodation.

What does it take for an employer to demonstrate that it satisfactorily engaged in the interactive process? Various courts have tried to flesh out what the regulations' language really means.

For example, the U.S. Court of Appeals for the Ninth Circuit (which covers the Western states) has explained that the interactive process means the employer must do four things. First, it must analyze the particular job involved and determine its purpose and essential functions. Second, it must consult with the disabled person to ascertain the precise job-related physical or mental limitations imposed by the disability and how those limitations could be overcome. Third, it must brainstorm with the disabled person to identify potential accommodations that could be made, and assess the effectiveness each would have. And finally, it must consider the preference of the individual to be accommodated and select the accommodation that is best for the employee and employer.

What Happens If No Interactive Process Occurs?

Because the ADA itself does not discuss a requirement of interactive process, it does not tell us what happens when an employer fails to engage in the interactive process. Neither do the EEOC regulations, which - as quoted above - say only that "it may be necessary for an employer to initiate" a process.

A small number of federal courts, including the Eleventh Circuit Court of Appeals (based in Atlanta), have ruled that a failure to engage in the interactive process plays no role in determining whether an employer has violated the ADA. Under this approach, the only question relevant to liability under the ADA is whether the employer has failed to provide a "reasonable accommodation."

If there is a reasonable accommodation out there and the employer failed to provide it, he is liable for that failure. If there is no reasonable accommodation that would have allowed the disabled person to do the job, then there is no liability. Whether the employer failed to investigate possible (but ultimately unworkable) accommodations does not matter at all.

The Ninth Circuit, for instance, has called the obligation to engage in the interactive process a "mandatory," and "continuing" one without any coherent explanation of what, if any, consequences flow from a failure to engage in the process.

Federal courts in other circuits - such as the Third (based in Philadelphia), and the Eighth (based in St. Louis) - have suggested that while liability cannot depend on an employer's failure to engage in the interactive process alone, such a failure typically will prevent an employer from obtaining a pre-trial victory known as summary judgment.

In other words, evidence of failure by an employer to engage in the process may allow, in these jurisdictions, a plaintiff to obtain a full-blown trial on his ADA claim, because the court will assume that if the employer had engaged in the interactive process, a reasonable accommodation may have been possible.

And any interpretation of the ADA that affects an employer's ability to obtain summary judgment is significant. Summary judgment is the most important device for avoiding a costly trial. Because summary judgment is far less expensive than trial, employers depend on it, and its unavailability certainly hurts employers in, among other things, settlement negotiations.

Why The Interactive Process Should Not Be Dispositive In An ADA Case: The Act, The Regulations And The Safe Harbor

We believe that the interactive process by itself should not determine an employer's liability under the ADA. As noted above, the text of the ADA itself makes no explicit mention of any procedural requirements in describing when employers have violated the Act. Instead, the statute says only that it is a violation of the Act when an employer fails to make "reasonable accommodations" that enable disabled employees to work. The statute says nothing about the means by which an employer is to accomplish this goal.

Nor do the EEOC's regulations require the process or suggest that an employer should be penalized for its failure to engage in it. Instead, they say that as a factual matter that it "may be necessary" for an employer to engage in an interactive process. Thus, when a plaintiff cannot establish any reasonable accommodation that would have been effective, he should not be able to recover even if the employer didn't even try.

On the other hand, we don't think that an employer's failure to engage in a process is always completely irrelevant to an ADA case. An employer's failure to engage in a dialogue can bear on the amount of damages to be awarded, in a case where the employee proves that there was a reasonable accommodation that would have worked.

Importantly, the part of the ADA that speaks to damages contains a partial "safe harbor" provision for employers who have demonstrated "good faith efforts, in consultation with the [disabled person], to identify and make reasonable accommodation." For those employers who have acted in good faith by consulting, the statute precludes compensatory and punitive damages, and instead limits an employee's recovery to things such as reinstatement and back pay.

There are other statutes, such as California's Fair Employment & Housing Act, that are written so as to make a failure to try an independent violation of the law. But Congress chose not to write the ADA in that same way.

Policy Arguments That The ADA Requires an Interactive Process:
Why They Don't Work

Various policy-related arguments have been advanced as to why the ADA should be read to include an independent requirement of an interactive process. We consider them here, and do not find any of them to be convincing.

First is the suggestion that unless the interactive process has some bite, i.e., some legal consequence for purposes of determining liability, an employer will lack sufficient incentive to participate in it. Plenty of workable accommodations, the argument goes, will simply be overlooked. This argument fundamentally misunderstands employer motivations.

The prospect of facing an ADA lawsuit - with all its attendant legal costs - is itself a powerful incentive to discuss and explore reasonable accommodations. An employer who does not engage in the interactive process fails to do so at his own peril, because sometimes accommodations will not be apparent unless the employer bothers to ask the employee. While a blind person may have nothing to say about how he can perform the job of a bus driver, an employee with a back condition might easily advise his employer of the ergonomic chair he needs.

And even if avoiding litigation were not sufficient motivation, certainly the statutory safe harbor from damages tips the scale. Unlike state and federal governments, which are shielded from damage awards by legal immunities, private employer-defendants are, and have to be, worried about large damage judgments.

Engaging in the interactive process is relatively low-cost; it simply involves talking to the employee and trying out possibilities. Given this low cost, especially when measured against the potentially high costs of litigation and damage awards, employers have plenty of incentive to work with disabled employees to find reasonable accommodations.

A second argument concerns the alleged information asymmetry between employer and employee. Employers, it has been said, have access to "extensive information concerning alternative positions or possible accommodations" that employees lack. For this reason, it would be unfair to ask an ADA plaintiff to prove in court the existence of a workable reasonable accommodation when he has not been provided by his employer all the relevant information about possible accommodations.

But this argument, too, is flawed. Any informational barriers that may exist in the workplace are non-existent at the time of litigation. Once litigation has commenced, a plaintiff has the full range of discovery tools such as depositions and interrogatories to produce evidence - even that possessed by his employer - bearing on the existence of a reasonable accommodation.

There are, to be sure, some areas of law that are concerned with making a person feel fairly treated, regardless of whether he ultimately gets what he wants. The idea that government has to provide all of us with "due process of law" before taking away our life, liberty or property is perhaps the most noteworthy example. But unlike constitutional due process - which applies to all of us - the ADA concerns only a subset of persons, those with disabilities.

Reading the ADA as a feel-good law thus raises some concerns about selective paternalism that are not present elsewhere. Indeed, because paternalistic societal attitudes towards the disabled are precisely what the ADA is designed to eliminate, reading the statute in a way that might itself be paternalistic is especially problematic. Before we would embrace such a reading, we would want to see a lot of evidence in the statute itself demonstrating that is what Congress wanted. And this we don't see.

Where Do We Go From Here?

Happily, the ultimate resolution of these thorny questions lies not with us but with the Supreme Court (and perhaps Congress should it decide to revisit the ADA to make adjustments and clarifications).

Thus far, though, the Supreme Court has been reluctant to weigh in on these issues. In fact, in addition to Barnett itself, the Court had the opportunity to take up these questions in another recent Ninth Circuit case, Humphrey v. Memorial Hospitals Ass'n. The Court in Humphrey sought the input of the U.S. Solicitor General's office (a rare move indicating that the Court may have been intrigued by the case), and then ultimately declined review.

But the ADA is not cooling off any time soon, so the Court will have ample opportunity to address these matters in the coming months.

Dipanwita Deb Amar is a Labor & Employment attorney at the San Francisco office of O'Melveny & Myers LLP. She received her B.A. from the University of California at Berkeley, and her J.D. from the University of California, Hastings College of the Law. She clerked for U.S. District Court Judge Robert Coyle. Dipanwita was counsel for US Airways in US Airways v. Barnett and for Memorial Hospitals Association in Humphrey v. Memorial Hosp. Ass'n.

Vikram David Amar graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings
College of Law. His "brothers in law" column, written with his brother Akhil Reed Amar (who is on vacation this week) appears regularly in Writ, and he is also an occasional contributor to publications such as the New York Times, the Los Angeles Times, and the
Washington Post. He is also the author or co-author of numerous law review articles, books and book supplements.

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