When Dealing with Persons with Disabilities, the Interactive Process Is Absolutely Critical

By William D. Goren

 

Summary

When dealing with people with disabilities, the interactive process is absolutely critical because no two disabilities, even the same ones, are exactly the same. For employment matters, case law is clear that the interactive process mentioned in the Title I final regulations is mandatory. While not clear whether such a process is mandatory for Title II entities (non-federal governmental entities), and Title III entities (places of public accommodations)- though if you dig deep enough, you will find cases stating as such-, preventive law demands that such an interactive process occur.

This article starts with an overview of the ADA and then dives into interactive process best practices. The best practices come from my reading of the case law over the years, my experience in the area, experience detailed by others, and my personal experiences being a  deaf individual (I function entirely in the hearing world with Bluetooth technology, advanced hearing aids, and lip reading), and for other reasons am also a user of voice dictation technology. Keep in mind, the ADA is 50 miles wide and 30 miles deep in each of it titles, so ADA knowledgeable legal counsel for the particular title(s) of the ADA at issue in the given situation is always critical. Of course, nothing in this article is meant to be legal advice and certainly is not a substitution for legal advice.

 

ADA Overview

The Americans with Disabilities Act (ADA) is much broader than people realize. It is divided into five titles: Title I (employment); Title II (accessing nonfederal governmental entities); Title III (accessing places of public accommodations); Title IV (telecommunications, which rarely gets litigated); and Title V (miscellaneous matters, such as retaliation and interference). The general paradigm is the same across all the titles, but the specific statutory, regulatory, and even guidances, are quite a bit different. So, don’t assume that just because you can practice in one of the titles of the ADA , you necessarily can practice in the other titles without knowledgeable assistance. It is also possible in some situations (licensing matters particularly come to mind), that various titles of the ADA will apply simultaneously, which makes it even more critical to seek out knowledgeable ADA counsel in those scenarios.

 

ADA Definitional Terms

The ADA prohibits discrimination against persons with disabilities. Just who is a person with a disability? A person with a disability is defined in any of three ways: 1) a person with a physical or mental impairment that substantially limits a major life activity; 2) a person with a record of such an impairment; or 3) a person regarded as having a physical or mental impairment regardless of whether a major life activity is substantially limited. 42 U.S.C. §12102(1). For the employment provisions and the accessing nonfederal governmental entity provisions, in addition to having a disability, you must also be, “qualified,” which has different meanings depending on whether the employment provisions or nonfederal governmental entity provisions are involved. Vastly simplified, both of those provisions come down to whether you can either do the essential functions of the job with or without reasonable accommodations (Title I), or whether you can access the eligibility requirements of the particular program, service, or activity of the nonfederal governmental entity with or without reasonable modifications (Title II). When it comes to accessing places of public accommodations (Title III), “qualified,” does not appear in that title of the ADA. However, Title III does require reasonable modifications (which means the same thing as reasonable accommodations under Title I), for a person with a disability to be able to access the place of public accommodation with respect to everything it does. In addition to undue burden, which means the same as Title I’s “undue hardship,” fundamental alteration of the operation of the business is a defense in Title III claims and for that matter in Title II as well. So, even though Title III does not have a “qualified,” requirement, the reasonable modification requirement combined with the undue burden/fundamental alteration defenses make “qualified,” a necessary part of the Title III analysis.

 

Discrimination Includes the Failure to Accommodate

Discrimination throughout the ADA includes the failure to make reasonable accommodations/modifications (“accommodation,” is the term used in Title I, while “modification,” is the term used in Titles II and III, though the meaning of the two terms are identical), for a person with a disability unless there is an undue hardship (Title I term) or an undue burden or fundamental alteration (Titles II and III terms). As is the case with reasonable accommodation/modifications, the meanings of undue hardship and undue burden are the same.

 

ADA’s Interactive Process and Its Purposes

Over the years, the interactive process has very much become a feature of Title I  (employment), cases and simply put, works like this: 1) once a person puts an employer on notice that they may need accommodations, the employer has the obligation to engage in the interactive process in order to figure out how the person with the disability can get to the same starting line as a person without a disability; 2) magic words are not required to activate the interactive process; and 3) whoever blows up the interactive process, is the one that loses.

Considering that Titles I-III all work on the principle that a failure to accommodate is disability discrimination and the whole idea of accommodation/modifications is to get the person with a disability to the same starting line as a person without a disability, preventive law demands that the interactive process be utilized whenever dealing with a person with a disability regardless of the specific Title of the ADA involved. After all, how can you figure out a reasonable accommodation/modification without first figuring out what might work for the person with the disability? Also, no two disabilities are the same, even the same ones, so the interactive process becomes imperative.

 

II – Interactive Process Best Practices

One of the mistakes that attorneys make often times when dealing with rights of persons with disabilities is not taking into account the perspective of a person with a disability. When that happens, the risk of litigation goes way up. The best practices discussed below take that into account the disability perspective. Remember, the Supreme Court has held that the ADA always requires an individualized analysis per PGA Tour v. Martin, so the interactive process will be unique to each individual in terms of how it transpires and what results are reached.

The interactive process section of this article gets divided into two sections. First, what is the best practices for a step-by-step approach for dealing with the reasonable accommodation process. Second, what are some of the best practices that you need to be thinking about while doing the step-by-step approach. With respect to the step-by-step approach, a distinguished colleague and a friend of mine, Robin Shea, a partner with Constangy, Brooks, Smith, and Prophete, writes a fabulous labor and employment blog called Employment and Labor Law Insider. She was in journalism before she turned to law and her blog entries are always fun and informative to read. She recently, here, wrote a blog entry on the 10 steps involved in the reasonable accommodation process. With her permission, I am going to put my own spin on the 10 steps that she put forth. There will be some overlap but the difference in our perspectives (she is a labor management side attorney, while my consulting and law practices focuses on understanding the ADA so that the client understands how to comply with that law and related laws bringing to it the perspective of an attorney with a disability), means that her and my approaches to the steps of the reasonable accommodation process are similar but not without their differences.

 

A. Interactive Process Steps

1. Determine whether the person needs or even desires a reasonable accommodation. Magic words are not required. The key is whether the person has given you sufficient information an accommodation may be necessary. Once you have been given such information, inquiring as to how you can be of help is a good approach. If the person is not interested in pursuing reasonable accommodations/modifications, the matter ends there. If the person is interested in pursuing accommodation further, then the interactive process should start immediately. The interactive process is a back-and-forth whereby the person needing accommodations and the entity involved attempt to reach a win-win solution so the person with a disability can get to the same starting line as a person without a disability. It pays to remember a couple of things about this. First, after the amendments to the ADA, it’s going to be a rare situation where a person will not have a disability per the ADA. So, I completely agree with Robin that contesting a person’s disability as not being covered under the ADA is a losing proposition (in my experience, it will be a losing proposition well over 95% of the time). Second, whoever blows up the interactive process is the one that bears liability.
2. Once the person with a disability informs you of their disability, the range of documentation you can request depends upon how obvious the disability is. Keep any requested documentation confirming the disability as narrow as possible. Fishing expeditions are not helpful, as it will only antagonize the person with the disability, and substantially increase the risk of litigation and then losing that litigation. If a job is involved, the critical question is going to be whether the person with the disability can perform the essential functions of the job with or without reasonable accommodations. So, it makes sense to attach the job description, which hopefully details the essential functions of the job, for the person with the disability as part of the information sent to the healthcare provider to review. It helps if the healthcare provider gives you some ideas as to what reasonable accommodations might be in order. If you get stuck, the Job Accommodation Network has tremendous ideas as to what might be a reasonable accommodation. Also, the Job Accommodation Network, here, can be a great resource regardless of whether an actual job is involved (you might be dealing with the situation involving access to a nonfederal governmental entity or access to a place of public accommodation). Also, see step 4 below concerning delaying putting any accommodation in place.
3. If a person desires a reasonable accommodation and is nevertheless performing the job well, it is no defense to say that because the person can perform the job well without accommodations, they are not entitled to a reasonable accommodation. A person with a disability is qualified for a reasonable accommodation if they can perform the essential functions of the job with OR without a reasonable accommodation regardless of how well they perform the job without reasonable accommodations. This same analysis should also apply to a person with a disability accessing a nonfederal governmental entity’s program, services, and activities.
4. If you and the person requesting an accommodation/modification agree on the accommodation/modification, then put it put into place. The accommodation should be put into place without unreasonable delay. An unreasonable delay in putting accommodation in place is actionable under the ADA.
5. If the person needs or wants an accommodation/modification, and it can be granted, then go ahead and make it happen. While it is true that the interactive process is a dialogue and a person with a disability is not entitled to the accommodation they prefer but only to a reasonable accommodation, preventive law makes sense to go ahead and grant the preferred accommodation unless you can show financial undue hardship (very rare occurrence), or a severe impact on your business operations (on the employment side of the ADA, you might refer to severe impact on business operations as “logistical undue hardship,” while on the accessing nonfederal governmental entity and accessing places of public accommodation side you would refer to that as, “a fundamental alteration).”
6. Be sure to follow up. That is, once the accommodation/modification has been made, be sure to check in periodically to make sure that everything is going well and to make any necessary adjustments. Remember, the interactive process is a continuing obligation.
7. Once the accommodation is in place and things are working, make sure your system is set up to ensure that one side of the bureaucracy so to speak doesn’t interfere with the accommodation process (interference is prohibited in 42 U.S.C. §12203(b)). For example, if the accommodations are working and everything is going fine, it is prohibited interference for the workers compensation side to take actions to take away the person with a disability accommodations because doing so is allowed under Worker’s Compensation rules.
8. The accommodation/modification possibilities are infinite as an accommodation is anything that gets a person with a disability to the same starting line as a person without a disability.
9. As a last resort in the employment context, if a person can not do the essential functions of their job with or without reasonable accommodations and after the interactive process has been exhausted, transferring the individual to another position is a reasonable accommodation.
10. Knowledgeable legal counsel is always important when it comes to the ADA. Also, it really helps if the mindset of a person with a disability is understood.
11. Training is super important and the training should not be a one-off but regularly repeated. One of the most common and preventable litigation scenarios is what happens when a supervisor takes over for a prior supervisor and then terminates existing accommodations that are working for the person with the disability or otherwise engages in prohibited disability discrimination. A strong training program can prevent those situations.

 

B. Things to Be Thinking about As You Go about the Reasonable Accommodation/Accommodation Interactive Process

a. What to Do

1. Value the individual with a disability making the reasonable accommodation request as an individual.
2. The entity being asked for a reasonable modification/accommodation should make it clear that the interactive process is a collaborative one and not an adversarial one. Nothing gets a person with a disability madder than when they receive the message that the entity has no interest in accommodating/modifying their practices but is engaging in the process because they have to.
3. Involve the person with the disability in the process immediately and keep them or posted throughout. Ignoring the person with the disability makes the person with the disability feel unseen and thereby increasing the risk of litigation. Also, I have seen too many situations where an entity ignores the person with the disability, does their own investigation, possibly even makes purchases, only to find out that a bunch of other things would have worked even better if they had engaged in the interactive process.
4. As mentioned above, don’t draw out the reasonable accommodation/modification process because an unreasonable delay in getting the reasonable accommodation done is actionable. Accordingly, keeping the individual with a disability posted helps prevent any unreasonable delay claims in addition to being the right thing to do. The same can be said when internally investigating a disability discrimination claim. That is, don’t drag out the process and don’t keep asking for more information/clarification unless absolutely necessary as doing either shows delay and will likely get the person with a disability very upset and increase the possibility of litigation and losing that litigation.
5. Remember the reasonable accommodation/modification will have to be made unless you can show an undue hardship (Title I), or an undue burden or fundamental alteration (Titles II and III). Showing any of this is a high bar to meet.
6. If effective communication is involved (the person has a disability that affects communication), the interactive process is required for places of public accommodations (Title III entities). If a nonfederal governmental entity is involved (a Title II entity), the interactive process is shaped by primary consideration needing to be given to how the person with the disability prefers to communicate.

 

b. What Not to Do

1. Fail to act on a reasonable accommodation request unless it is explicit or contains magic words. Numerous cases have held that magic words, are simply not required, though what that means can vary depending upon the court involved. The minute an entity becomes aware that reasonable accommodation/modifications may be needed regardless of the words used, whether they be in writing or otherwise, the interactive process should start.
2. Do not gaslight the person with a disability. This is something that happens to me frequently when I travel on business without a hearing person accompanying me. While I function entirely in the hearing world with Bluetooth technology, lip reading, and advanced hearing aids, my congenital bilateral sensorineural hearing loss of 70 dB-120 dB plus means at night my situation is the same as a culturally deaf (Deaf), individual. You would be amazed how many times I make a reservation and am told that the room will be hearing accessible only to show up and find out when entering the room that it is no such thing. It is not unheard of for me to then approach the front desk and explain the problem only to be told that I must be wrong because the hotel’s information system indicates to them that the room is indeed hearing accessible. One would think that a D/deaf person would know what a D/deaf accessible room is.
3. Do not suggest to the person with a disability that a surcharge is being imposed on them in order for them to get accessibility. Once again, I have seen this happen to myself. For example, I will call and ask for room at a hotel, and they will give it to me. After that, I will ask for hearing accessible room, and it is not unusual for the reservation personnel to quote me a higher price. It is simply a violation of the ADA to impose a surcharge on the person with a disability so that they can have the accessibility they need.
4. Don’t make the mistake of ignoring suggestions from the person with the disability as to what works and/or make it clear that you don’t care what works because your organization is the primary consideration.

 

III – Conclusion

While you can argue whether the required interactive process for employers of 15 or more employees is legally required outside of the employment arena, it is simply a huge mistake not to engage in the best practices for the interactive process regardless of what title of the ADA may be applicable. Failing to engage in the interactive process is a surefire recipe for upsetting your employee, client, or customer with the disability and for increasing the likelihood of litigation. Simply put, failing to engage in the interactive process just gets the person with the disability mad, doesn’t help with business development, and increases the potential for litigation.