When the Equal Employment Opportunity Commission (EEOC) investigates a disability discrimination complaint brought under the ADA, one of the first things the investigator will look for is whether the employer engaged in the “interactive process” with the employee. Participation in the interactive process is mandatory for employers once an employee asks for an accommodation.
As a federal court recently stressed, “the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA.” The employer’s obligation to engage in this process arises as soon as the employee gives the employer notice of his or her disability and the desire for an accommodation.
The purpose of the “interactive process” is to determine what, if any, accommodation should be provided to an employee. During the interactive process, the employer may ask the employee relevant questions that will enable it to make an informed decision about the employee’s request. This includes asking for information about the desired accommodation, the nature of the problem prompting the request, and how the employee believes a disability has occasioned the need for an accommodation.
The employee is also required to participate in the interactive process. Although the employee is not required to identify the exact accommodation necessary, the employee does need to describe the work-related problem he or she is having and why he or she believes it is related to a disability.
At the conclusion of the interactive process, the employer may determine that it can reasonably accommodate the employee’s disability. Or, the employer may conclude that the employee cannot perform the essential functions of the job even with an accommodation, or that an accommodation would pose an “undue hardship” on the employer.
In the latter case, if an employee subsequently complains to the EEOC that the employer failed to provide a reasonable accommodation, the EEOC may investigate whether the employer should have granted the reasonable accommodation request. The first thing the EEOC will check is whether the employer engaged in the interactive process. Even if the EEOC ultimately disagrees with the employer’s decision to not provide the reasonable accommodation, evidence that the employer engaged in the interactive process in good faith will go a long way towards mitigating any possible penalties or other enforcement action by the EEOC. Conversely, if the EEOC discovers that the employer rejected the employee’s request for a reasonable accommodation without first engaging in the interactive process, the likelihood of more severe enforcement action is substantially increased.
To ensure compliance with the ADA’s interactive process requirements, the best practice for employers is to train all frontline supervisors and managers to recognize when an employee has requested a reasonable accommodation under the ADA. Once a supervisor has received such a request, HR should then be contacted immediately so that the interactive process with the employee can begin and the employer can evaluate whether it is able to accommodate the employee’s request.
Nick Birkenhauer is an attorney in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.
