An employer who fails to provide reasonable accommodation to a disabled individual can be liable for damages, including the payment of back pay and benefits, compensatory damages for "pain and suffering," and punitive damages. Though the amount of compensatory and punitive damages that a successful plaintiff can recover is currently capped at $300,000 for large employers and $50,000 for small employers, the impact of an adverse jury verdict can be significant. Even if an employer has employment-practice liability insurance, that insurance may not cover liability for punitive damages for intentional acts of discrimination. Without insurance, the loss would come right out of the employer's bottom line.
The problem for any employer faced with the task of accommodating a particular disabled worker is knowing when the legal duty to provide the required reasonable accommodation has been met. If the employer is wrong in the eyes of the jury and has not done enough to accommodate the worker's condition, then the very real possibility of a large damage award exists. Companies need to fully understand the law to ensure compliance and avoid becoming one of the organizations facing costly charges of discrimination.
It is discrimination under the ADA if an employer does not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified employee with a disability. Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified employee with a disability to perform the essential functions of the job or to enjoy the benefits and privileges of employment equal to those enjoyed by other employees.
Accommodation is not required, however, if it would cause an employer undue hardship. Whether an accommodation represents an undue hardship is based on a case-by-case assessment. Accommodation is also not required if the employee presents a direct threat to the workplace, other employees, or himself. (More on these points later.)
Meeting the reasonable accommodation obligation can be tricky. The federal regulations implementing the ADA state that to determine the appropriate accommodation, it may be necessary for the employer to initiate an informal, interactive process with the employee. According to the regulations, the appropriate reasonable accommodation is best determined through a flexible interactive process that involves both the employer and the employee. The process requires a great deal of communication.
The interactive process is not mandatory. Rather, it is simply one means of determining what type of reasonable accommodations might allow the disabled employee to perform the essential functions of the job. But if reasonable accommodation was not provided and the employee had a reasonable suggestion that was never considered, then the employer will be hard pressed to defend its action. Thus, working with the employee interactively is advisable, if not required.
If an accommodation is found, the employee gets to remain in the position and the employer doesn't have the expense of going through the job hiring process again to find a replacement--a win-win for both parties. But if good-faith efforts fail to identify a reasonable accommodation and termination occurs, the employer can point to its interactive efforts to defend against a charge of discrimination that might follow.
In many instances, both the disability and the type of accommodation required will be obvious, and there will be no need to engage in a drawn-out process of trying to determine an accommodation. But where the accommodation is not so obvious, the interactive process is crucial.
In those cases, the dialogue between the employer and the employee can reveal creative solutions that neither may have considered before. Importantly, the interactive process may also establish that there truly is no accommodation that would be reasonable in the circumstances. …