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Sixth Circuit Determines That Employer Engaged In Interactive Reasonable Accommodation Process In Good Faith Despite Failure To Offer Alternative ADA Accommodations
On December 8, 2010, the Sixth Circuit held in Jakubowski v. The Christ Hospital, Inc., 627 F.3d 195 (6th Cir. 2010) that an ADA plaintiff was not an otherwise qualified individual because the reasonable accommodations proposed by the plaintiff prior to his discharge would not enable him to perform the essential functions of his job. The Sixth Circuit, thus, denied plaintiff’s Americans with Disabilities Act (ADA) claim and state disability claims. Plaintiff was employed as a family practice medical resident when he was diagnosed with Asperger’s Disorder, which affected plaintiff’s social interaction and ability to communicate effectively with professional colleagues and patients. Prior to his termination, plaintiff proposed that his employer, a hospital, accommodate his disability by providing his colleagues with “knowledge and understanding” of the symptoms and triggers of Asperger’s. Plaintiff acknowledged that he would have to improve communications with patients but proposed he could accomplish this requirement on his own. At trial, plaintiff, for the first time, also proffered a different reasonable accommodation, a remediation program allegedly similar to one previously offered to another student (who plaintiff’s expert opined had shortcomings similar to plaintiff). Expressly refusing to consider the remediation program proposed by plaintiff at trial to be a reasonable accommodation, the Sixth Circuit affirmed summary judgment in the employer’s favor. The Court recognized that plaintiff’s ability to communicate with colleagues and patients was an essential function of plaintiff’s job and found that plaintiff’s proposed accommodation of “knowledge and understanding” did not qualify plaintiff to perform all essential functions of his residency. Explaining that “the employer is not required to propose a counter accommodation in order to participate in the interactive process in good faith,” the Sixth Circuit nevertheless found that the employer had engaged in good faith in the interactive accommodation process because it met with plaintiff and considered his proffered accommodations, told plaintiff why the accommodations were unreasonable, offered to help plaintiff find a residency that required less patient contact, and did not impede the interactive process. In a concurring opinion, Circuit Judge Boggs found that the majority opinion erroneously “shackles a plaintiff to his initial pre-termination proposed accommodation” by only considering the reasonable accommodation requested prior to the employee’s termination. Judge Boggs opined that “[t]he majority holding would undermine the force of this mandatory interactive [accommodation] process by incentivizing employers to withhold potential accommodations in the hopes that the employee will be held to his initial and legally inadequate accommodation in subsequent litigation.” Although this Sixth Circuit case is good news for employers in regard to their duty to propose counter-accommodations, employers should continue to communicate extensively with employees during the reasonable accommodation interactive process. While the Sixth Circuit held that offer of a counter-accommodation was not required, the Court did note that “taking the extra step of proposing counter accommodations may be additional evidence of good faith.” Additionally, other courts have required an employer to propose alternative accommodations in order to participate in good faith in the interactive process. © 2011 Kiesewetter Wise Kaplan Prather, PLC |
