Demonstrating Good Faith Helps Buyers Avoid, Win SuitsBy Disabled Workers Even though an employer takes thenecessary steps to reasonably accommodate a disabled employee,litigation is often the result of a disgruntled worker who believesthat he or she has been treated unfairly or differently than whatwas expected.

Lawsuits involving the Americans WithDisabilities Act can be avoided when employers take the stepsnecessary to ensure that an employee with a disability is treatedfairly and consistently in the reasonable accommodationprocess.

In essence, it is in an employers best interests to exercise theutmost good faith possible in determining whether or not, and inwhat manner, to provide a reasonable accommodation.

This process, which must be an individualized approach, shouldinclude the following steps:

Generalizations and stereotypes must play no part in the processof determining an appropriate reasonable accommodation. The inquiryshould not be on how people with a particular type of disabilitymight be able to perform the job. Because every employee and everydisability is different, a reasonable accommodation should betailored to the individual in question and the essential functionsof his or her job.

Before an employer can decide upon the appropriate reasonableaccommodation, the employer must assess the specific job at hand.The specific purpose as well as the essential functions of the jobmust be evaluated, considered, and documented.

An employer must consider the specific abilities and functionallimitations of the employee requesting the reasonableaccommodation. The employee in question must be consulted, for anemployer may not know all the relevant information about anindividuals disability or the limitations that disability imposesupon the job performance. Moreover, the employee is often the bestsource for ideas as to what would be the most effective andsimplest accommodation.

In legal terms, this is called the “interactive process.” Inpractice, it requires management to engage in a good faith dialoguewith the employee.

The employer need not defer to the employees choice, but wouldbe difficult to demonstrate good faith in a subsequent lawsuit ifan employer had never bothered to consult with the employee atquestion about a potential reasonable accommodation. Moreover, anemployee often will suggest a simpler, less costly alternative thanthe employer may have thought necessary at first.

In the reasonable accommodation process, an employer shouldalways request backup documentation regarding the employeesdisability, including any reports by physicians, rehabilitationtherapists, or other professionals with knowledge of the employeesfunctional limitations.

Employers should also take a conservative view of the unduehardship exception.

There may well be situations where an employer believes that thecheapest and most effective reasonable accommodation is nonethelessone that will impose an undue financial hardship on the business.This is the one defense under the ADA to refusing a reasonableaccommodation.

Given the legal risk and exposure presented by denials of arequest for a reasonable accommodation, an employer must take avery hard look at whether or not the situation at hand falls withinthe defense of “undue hardship.”

The financial costs of accommodations are not limited in anyrespect under the ADA by the amount of the disabled employees wagerate or salary. Instead, the relevant focus centers on assessingwhether the costs of the accommodation impose an undue hardshipbased on the resources of the employer.

Therefore, before denying a reasonable accommodation based onthe “undue hardship” defense, an employer should make a thoroughfinancial analysis of whether the accommodation would impose a truefinancial burden.

This will require consultation with high-level decision-makersand corporate officials responsible for budgets and finances. Anemployer must analyze whether federal tax credits, tax deductions,or other sources of financing are available to pay for or reducethe cost of the accommodation.

Furthermore, the Equal Employment Opportunity Commissionsregulations contemplate that an employer should check with theemployee as to whether or not they would be able to provide theaccommodation themselves or pay the portion of the cost of theaccommodation which would constitute the undue hardship to theemployer.

Until all of these steps are taken, an employer should not denya request for a reasonable accommodation on the basis of unduehardship.

Employers should also create a good-faith file to document thereasonable accommodation process.

To prevent a later challenge to the employers decision, theprocess of deciding upon the reasonable accommodation should bedocumented in a thorough fashion. Care should be taken to createdocumentation that will stand up in court, and demonstrate anemployers good faith in reaching its decision.

If an employer can demonstrate its good faith, the potential fordamages in any ADA lawsuit will be reduced substantially.

Lisa Bee is director of EPL risk management for LexingtonInsurance Company in Boston. Gerald L. Maatman Jr. is a partnerwith Seyfarth Shaw in Chicago.

Reproduced from National Underwriter Edition, February 3, 2003.Copyright 2003 by The National Underwriter Company in the serialpublication. All rights reserved.Copyright in this article as anindependent work may be held by the author.