Two Americans with Disabilities Act lawsuits filed by the Equal Employment Opportunity Commission over the past two weeks illustrate the risk that employers take when they fail to talk to employees about possible accommodations.
- The EEOC brought suit against Kmart, claiming that the retailer refused to consider alternate per-employment drug testing other than urinalysis for an applicant with kidney issues.
- The EEOC also brought suit against an Arkansas car dealer that declined a salesperson the use of a golf cart following spinal surgery.
In both instances, the EEOC’s press releases make it clear that part of each employer’s violation was the employer’s failure to “engage in any discussions … about the suggested accommodations.”
The ADA does not guarantee an employee his or her preferred accommodation. It only guarantees a reasonable accommodation. The statute does guarantee, however, that employers engage disabled employees in an interactive process to determine the appropriate reasonable accommodation (if any).
If an employer dismisses an individual’s accommodation request outright, it will be difficult, if not impossible, for that employer to show that it engaged in the required interactive process. In that case, even if the employee’s request is absurd, burdensome, or otherwise unreasonable, it is likely that the employer nevertheless violated the ADA.
Communication between an employer and a disabled employee is the key to avoiding problems under the ADA. Do not commit the cardinal ADA sin of having a failure to communicate.
Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or firstname.lastname@example.org. You can also follow Jon on Twitter @jonhyman.