by Craig A. Sullivan1
A. The ADA
In 1990, Congress passed the Americans with Disabilities Act.2 Its stated purpose is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."3 The ADA's definition of discrimination includes an employer's "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such [employer]."4 The employer commits unlawful discrimination under the ADA if the employer fails to make reasonable accommodations of the known physical or mental limitations of an otherwise qualified but disabled individual who is an applicant or employee.
To maintain a claim under the ADA, a plaintiff must show that he or she is a "qualified individual with a disability." A "qualified individual with a disability" is a disabled individual who, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."5 The ADA identifies such types of reasonable accommodations that an employer may have to provide: "job restructuring, part-time or modified work schedules, reassignment to a vacant position," acquiring or modifying equipment; changing exams, "training materials, or policies," and providing "qualified readers or interpreters."6
B. The Interactive Process
The process by which the employer and disabled individual attempt to achieve an accommodation that enables the disabled individual to perform the essential functions of a job in the employer's workplace is called the "interactive process." The interactive process requires that the parties analyze ADA issues in a manner substantially different from those in traditional employment discrimination cases.
In traditional employment discrimination law, membership in the protected class is usually either physically evident (e.g. sex, race) or easily invoked by the employee (e.g. religion). To trigger the interactive process, in most instances the employee must explicitly assert membership in the protected class by informing the employer of the employee's disability and resultant limitations and by requesting accommodation of those limitations.
Whereas traditional employment discrimination law is prohibitory, the ADA requires the employer to interact with the disabled individual to make an accommodation for those limitations. Further, the interactive process requires the employer to engage in a form of individualized bargaining with the employee.
Traditional employment discrimination cases only require the courts to apply the relatively objective standard of equality of treatment, a standard free of determinations of fairness. The ADA's "reasonable accommodation" standard is open-ended, subjective and allows–often requires–the fact-finder to judge the fairness of an employer's policies as applied to the disabled.
II. The Interactive Process Generally
The interactive process is the dialogue between the employer and employee with the objective of finding a means by which a disabled employee can perform the essential functions of a job in the employer's workplace. The EEOC, in a description uniformly adopted by the courts, defines the interactive process as "an informal, interactive process . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations."7 The EEOC's interpretive guidelines also state: "Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability."8 The EEOC has outlined four steps involved in the interactive process:
(1) Analyze the particular job involved and determine its purpose and essential functions;(2) Consult with the [disabled] individual . . . to ascertain the precise job-related limitations imposed by the . . . disability and how those limitations could be overcome with a reasonable accommodation;
(3) In consultation with the [disabled] individual . . . identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and
(4) Consider the preference of the [disabled] individual . . . and select and implement the accommodation that is most appropriate for both the employee and the employer.9
Although the EEOC's description of the steps suggests that the employer carries the primary burden of moving the interactive process forward, both the employer and the employee have the responsibility of making the process interactive and productive. "[T]he employer and employee must work together in good faith to help each other determine what accommodation is necessary."10 The responsibility to enter into the process is shared because "each party has information the other does not have and cannot easily obtain."11 As stated by the Seventh Circuit, "[w]here the missing information is of the type that can only be provided by one of the parties, failure to provide the information may be the cause of the breakdown and the party withholding the information may be found to have obstructed the process. The determination must be made in light of the circumstances surrounding a given case."12 For example, the employer must bring to bear and share with the employee its greater knowledge of the equipment involved in various jobs, vacant positions that might be available, and the essential functions of various jobs. If the employee suggests a particular accommodation, the employer should bring this knowledge to bear in the discussion and state its concerns or objections. The employee must be candid and responsive. If the employer needs additional information concerning the employee's mental and physical condition and resultant limitations, the employee must provide it.13 If the employer proposes an accommodation to which the employee has an objection or concern, the employee must express that objection or concern during the interactive process. If the employee does not state objections or concerns during the interactive process, the court will be reluctant to hear the employee testify to them in court.14
The interactive process can take a short period of time. As stated in Loulseged v. Akzo Nobel, Inc., "[t]here may be some situations in which the reasonable accommodation is so obvious that a solution may be developed without either party consciously participating in an interactive process."15 In Bultemeyer v. Fort Wayne Community Schools,16 the employee wanted to transfer to a different school because of his depression. The court hypothesized that the interactive process might have only been a single question concerning what the employee would like the employer to do.
The interactive process can also be long, time-consuming and frustrating. For example, in the case of an employee who cannot perform the essential functions of the employee's assigned job, the employee might have a right to reassignment to a vacant position, the essential functions of which the employee can or might be able to perform. Often the employee's ability to perform the essential functions of a job can only be established from actual experience, so that the accommodation might result in the employee trying unsuccessfully to perform various alternative jobs. If each job requires training and each job is important to the efficiency of the business operation, a certain loss of productivity might result, not to mention the diversion of someone's time from regular duties to the attempt to accommodate the employee. Because the duty to accommodate is continuing, the employee is not restricted to a certain number of attempts to perform the essential functions of vacant jobs, but might only be limited by the number of vacant jobs.17
For purposes of this discussion, this article will assume that the ADA requires an employer to enter into the interactive process in good faith, if an employer knows of an employee's disability and the employee has requested an accommodation. The majority of courts have held engagement in the interactive process to be mandatory, although there are minority opinions otherwise.18 In Fjellestad v. Pizza Hut of America, Inc., the Eighth Circuit identified four elements that a plaintiff must prove to establish a failure to engage in the interactive process in good faith:
1) The employer knew about the employee's disability;2) The employee requested accommodations or assistance for his or her disability;
3) The employer did not make a good faith effort to assist the employee in seeking accommodations; and
4) The employee could have been reasonably accommodated but for the employer's lack of good faith.19
This article will review the case law concerning each of these elements. As this article will explain, as a matter of law and prudence, the employer's best policy is to engage in the interactive process.
III. The Employer's Knowledge of the Disability and the Employee's Request for Accommodation
An employer has no duty to enter into the interactive process until the employer knows of the employee's disability and the employee has requested an accommodation. "The employer is not required to speculate as to the extent of the employee's disability or the employee's need or desire for an accommodation."20 Because the ADA only requires accommodation to "known . . . limitations,"21 the knowledge of the disability necessary to trigger the duty to enter into the interactive process is more than just the name of the disability. The employer must also be apprised of the limitations resulting from the employee's physical or psychological condition. "[t]he ADA does not require an employer to assume that an employee with a disability suffers from a limitation."22 An employer that tries to accommodate a disability based on the name of the disability, rather than on information concerning the employee's individual limitations, runs the risk of violating the ADA's prohibition against discriminating against an employee because the employer regards the employee as having a disability. If, for example, an employer rearranges functions to accommodate perceived limitations without input from the employee, the employee might accuse the employer of stereotyping, a type of case analogous to pregnancy discrimination cases in which the employer, often paternalistically, reassigns functions from the pregnant employee to protect the woman or fetus.23
Given the individual nature of physical and psychological limitations, courts have had limited success in fashioning uniform rules concerning the type of information an employer must have before it must enter into the interactive process. Some limitations and need for accommodation are obvious, such as those required for the wheelchair-bound employee. As to less evident limitations, in the early decisions the courts applied a formalistic approach concerning what information an employee must give an employer. For example, in Taylor v. Principal Financial Group, Inc., the employee told the employer of his diagnosis for bipolar condition and requested a "reduction in . . . 'objectives and a lessening of the 'pressure.'" The court held that the employee failed to sufficiently identify the disability and resultant limitations.24
In more recent decisions, courts have analyzed the issues of the sufficiency of the employer's knowledge of limitations and the employee's request for accommodation in terms of notice. The courts examine the totality of the knowledge the employer had on hand, i.e. whether what the employee said combined with what the employer already knew or should have known concerning the employee's limitations was sufficient to put the employer on notice of the need for an accommodation. In Taylor v. Phoenixville Sch. Dist., the Third Circuit observed that "[w]hat matters under the ADA are not formalisms about the manner of the request, but whether the employee or a representative for the employee provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation."25 In Cannice v. Norwest Bank Iowa, the Eighth Circuit looked to the employer's preexisting knowledge of the plaintiff's mental or physical condition as supplemental information concerning the plaintiff's limitations and need for an accommodation. The court listed various instances in which the plaintiff's depression exhibited itself in the work place as a source of information concerning plaintiff's condition and need for an accommodation.26 Although symptomatic behavior cannot, standing alone, trigger the employer's duty to engage in the interactive process,27 the courts recognize that symptomatic behavior can provide knowledge of limitations and the need for an accommodation. In Miller v. Illinois Dep't of Corrections, because the employee was on leave due to work-related injuries and the employee had information concerning his physical condition, his statement to the employer, "I want to keep working for you–do you have any suggestions?", was found sufficient to trigger the employer's duty to enter into the interactive process.28
It remains clear that the employee must request an accommodation to trigger the interactive process. The Eighth Circuit in Fjellestad stated the general rule that "the notice must merely make it clear to the employer that the employee wants assistance for his or her disability."29 As with the knowledge issue, the required content of the request and how far the employee must go in suggesting specific accommodations is too individualized for uniform rule making. In Mole v. Buckhorn Rubber Prods., Inc., the Eighth Circuit held that, under the facts of that case, a general request for an accommodation was insufficient to trigger the interactive process because "only (the employee) could accurately identify the need for accommodations specific to her job and workplace." The employee "cannot expect the employer to read (her) mind and know (she) wanted a particular accommodation and (then) sue the employer for not providing it."30 Although these two decisions seem inconsistent--Fjellestad states that a mere request for assistance is sufficient, but Mole requires the employee to also suggest accommodations-- the opinions addressed the specific types of limitations before them. As a general rule, the more overt an employee's limitations or available accommodations, the less information is required from the employee to trigger the interactive process. As the court in Loulseged v. Akzo Nobel, Inc. stated: "Employers cannot be expected to anticipate all the problems that a disability may create on the job and spontaneously accommodate them."31
The EEOC has issued guidelines stating that if an employee requests time off for a reason related or possibly related to a disability (e.g., "I want six weeks off to get treatment for a back problem"), the employer should consider a request for ADA accommodation as well as FMLA leave.32 It is doubtful that any court would allow an assertion of a back condition in itself to constitute knowledge of a disability for ADA accommodation purposes or that invocation of FMLA rights would mean that an employer should start thinking of the manner and means of accommodating an employee's disability pursuant to the ADA. The courts recognize that employers need some notice that an employee is claiming rights to an accommodation before an employer can be found liable for failing to provide one. These guidelines do point out, however, that employers should be sensitive that apparently routine conversations might trigger the ADA's duty to accommodate, especially if the employer already has information concerning the employee's medical conditions from records provided to it pursuant to workers' compensation, the FMLA, or otherwise. The statement, "I want to keep working for you. Do you have any suggestions?", seems casual and routine. Obviously it was not.
If an employee's disability substantially impairs the employee's ability to communicate, the courts require the employer to be more sensitive to whether the employee is requesting an accommodation. As stated in Bultmeyer, "The employer has to meet the employee half-way, and if it appears that the employee may need an accommodation but doesn't know how to ask for it, the employer should do what it can to help."33
The timing of the knowledge of the employee's disability and request for accommodation can be crucial. In discipline cases, plaintiffs often argue that, because the misconduct resulting in the discipline was caused by the employee's disability, the discipline was disability-related and therefore violative of the ADA. The courts have uniformly rejected this argument. For example, in Hill v. Kansas City Area Transportation Authority,34 the plaintiff, a bus driver, only requested accommodation for her need to take pain medication after her discharge for twice falling asleep on the job. The court held that the request for an accommodation was too late when not made until after the employee had engaged in behavior warranting termination. On the other hand, if an employee has apprised an employer of the need for an accommodation and the employer disciplines the employee for misconduct that an accommodation might have prevented, the courts have found a violation of the ADA. As stated by the Sixth Circuit, "Failure to consider the possibility of reasonable accommodation for known disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge solely because of the disabilities."35
Employees sometimes contend that their misconduct standing alone should have put the employer on notice of the disabilities, limitations and need for accommodation. The courts have rejected the argument that misconduct alone can put an employer on notice that the employee was protected by the ADA.36 On the other hand, as previously stated, the courts might look to misconduct as additional information concerning limitations and needs for accommodation for purposes of determining its sufficiency to trigger the interactive process.37
IV. Lack of Good Faith
The courts have fashioned a general rule that parties must act in good faith in the interactive process. Because the courts are willing to state that parties must communicate, but the courts are not able or willing to mandate what the parties must say, the "good faith" standard is about as definite as the courts can be. Because the specific objective of the ADA's interactive process is the accommodation of the employee's disability, if the interactive process does not achieve a reasonable accommodation and there is at least a question of fact as to whether an accommodation could have been achieved, the courts will scrutinize the specifics of the interpersonal process — literally who said what when — to determine why the interactive process broke down without achieving an accommodation. The mode of analysis is well stated by the Seventh Circuit:
[C]ourts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility. For example, the cause of the breakdown might be missing information. The regulations envision such a cause.In some instances neither the individual requesting the accommodation nor the employer can readily identify the appropriate accommodation. For example, the individual needing the accommodation may not know enough about the equipment used by the employer or the exact nature of the work site to suggest an appropriate accommodation. Likewise, the employer may not know enough about the individual's disability or the limitations that disability would impose on the performance of the job to suggest an appropriate accommodation.38
If the court finds that the employee caused the breakdown of the interactive process, the employee's case will be dismissed.39 If the employer's conduct caused the breakdown, the result is problematical and will be discussed in the next section.40
Examples of breakdowns caused by employee conduct are:
V. Consequences of an Employer's Bad Faith in the Interactive Process
If a disabled employee establishes that, even though the employer engaged in the interactive process in good faith, the employer failed to provide a reasonable accommodation that was available, the employer will be liable for actual but not consequential or punitive damages. If the employer did not engage in the interactive process in good faith and the plaintiff establishes that employer failed to provide a reasonable accommodation that was available, the employer can be liable for consequential damages, including punitive damages. These matters are made clear by statute.45
The more difficult issue arises when the employer has failed to engage in the interactive process, but it is unclear whether a reasonable accommodation was available or might have been achieved through the interactive process had the employer acted in good faith. The circuits are split concerning how to deal with this issue. The minority holds that there is no duty to engage in the interactive process at all.46 They reason that the ADA requires an employer to provide an accommodation if one is available. Whether the employer does so graciously and courteously is not relevant.
The Eighth Circuit's position, which best represents the majority view, is that an employer has a duty to engage in the interactive process in good faith, but that its failure to do so does not give rise to liability "per se." The employee still must prove that there was an achievable reasonable accommodation. An employer's failure to engage in the interactive process will generally make it inappropriate to grant summary judgment to the employer, however.47 The decisions concerning this issue are tentative. One can expect substantial litigation concerning this issue in the future.
VI. Comparison Between the ADA and Traditional Employment Discrimination Cases
Gile v. United Airlines, Inc.48 demonstrates how the ADA, and especially the interactive process, has fundamentally altered the traditional employment relationship, at least as to the disabled. It reveals how the dictates of the ADA require employers to deal with employees in a manner substantially different from that required by traditional employment discrimination law.
In Gile, the plaintiff, an employee on the night shift, suffered from depression. Her psychologist repeatedly wrote letters to the employer requesting that the employee be transferred to the day shift. The employer's medical director considered the depression "non-occupational" and thought the "change in work schedule more accurately addressed personal and life and family issues rather than an illness." In common parlance, he thought her malingering for a cushier job. The medical director told her she should quit if she was unhappy there. The employer did grant her extended medical leave, however. During her leave, several day jobs became vacant for which she would have been eligible had she bid on them. The employer did not tell her of the vacancies, however, because the employer never notified employees on medical leave of vacancies.
In real life, this sequence of events occurs frequently. The medical director was thinking in the classic workers' compensation/malingering mind set. The personnel department did not think to call the employee on leave because it had no policy of informing employees on medical leave of available positions. After all, if an employee cannot work, why inform the employee of vacant positions?
The difficulty is that the response was found violative of the ADA and the jury awarded $200,000 in compensatory damages and $500,000 in punitive damages.
Whereas in traditional tort law the defendant risks little by intransigence in settlement negotiations and vociferous denigration of a plaintiff's medical complaints, under the ADA the employer that doubts or even questions the employee's claim to a disability might be taking a gamble. The employer should be made aware of this. Whereas in traditional tort litigation settlement negotiations are generally inadmissible, in ADA litigation the interactive process can go into evidence before the jury. Juries might be able to award punitive damages based on the employer's conduct during the interactive process and, with a disabled employee who wants to work, juries might not be sympathetic to intransigent employers. A lawyer might have some uncomfortable days in court if the lawyer has not advised the client that the client's conduct in the interactive process might be presented to the jury.
In traditional employment discrimination law, the employer's defense that it never calls employees on medical leave to inform them of vacant positions would be a very strong defense, possibly dispositive by summary judgment. For example, in Lang v. Star Herald,49 the employer's leave policy provided that an employee who had exhausted paid-leave time could apply for an unpaid leave of absence, but the employer did not guarantee that it would hold open the employee's position during the absence. The employer asked Lang, who was pregnant, to apply for an indefinite leave of absence, but she refused to do so because she would not be guaranteed reemployment. As a result of her refusal, the employer terminated her. Lang contended that she did not need to show that she was treated differently than similarly situated employees, only that her pregnancy-related situation was a motivating factor in her discharge.
The Eighth Circuit affirmed the trial court's grant of summary judgment, labeling Lang's position "a fundamental misunderstanding of the law." The court went on to state:
Title VII requires employers to treat employees who are members of protected classes the same as other similarly situated employees, but it does not create substantive rights to preferential treatment. . . . Lang must have evidence that she was treated differently than similarly situated employees. As the Seventh Circuit candidly stated, "The [PDA] does not require that employers make accommodations for their pregnant workers; 'employers can treat pregnant women as badly as they treat similarly affected but nonpregnant employees.'"50
With traditional employment discrimination cases, the courts apply an objective standard to determine whether the employer treated the plaintiff the same as it treats similarly situated employees. If the court finds equal treatment, the court's analysis goes no further. The Eighth Circuit's business judgment instruction informs the jury that it may not return a verdict for plaintiff just because the jury might disagree with the defendant's (decision) or believe it to be harsh or unreasonable.51
The ADA's reasonable accommodation standard requires the employer to treat the disabled employee differently and often preferentially. It allows – even requires – the fact finder to pass on the fairness of the employer's personnel decisions, at least as applied to the disabled. The aspect of the Gile opinion that employers might find most disturbing is its concentrated focus on the treatment of one individual; specifically, that the opinion faults the employer's failure to inform the plaintiff of the vacant positions on the day shift. This aspect is common to most interactive process cases. Whereas in traditional employment discrimination cases the plaintiff must produce evidence of the overall personnel policies of the defendant to establish different or unequal treatment of the plaintiff, the ADA plaintiff's best tactic is to restrict the focus to how the employer dealt with the plaintiff. It is up to defendant's counsel to broaden the perspective, remind the jury that the defendant's primary function was not to provide accommodations for the plaintiff, that the supervisor or manager who was assigned the duty to engage in the interactive process also had many other duties and concerns, and that the plaintiff was one among many employees, all of whom had claim to some consideration.
VII. Conclusion
The prudent employer will avoid conduct that appears callous or intransigent and should engage in the interactive process in good faith. Because the interactive process is such a substantial departure from the traditional employment relationship, counsel for the employer should ensure that the client is aware of the duties involved in the interactive process and the attendant risks of the employer's failure to engage in the interactive process in good faith.
Endnotes
1 Mr. Sullivan is a sole practitioner in St. Louis, concentrating in the representation of management in employment related matters. He received his B.A. from Williams College, Williamstown, Massachusetts in 1974 and his J.D. from St. Louis University School of Law in 1979.
2 Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. This article will be concerned with Title I of the ADA, concerning employment.
3 42 U.S.C. § 12101 (b)(1).
4 42 U.S.C. § 12112(b)(5)(A).
5 42 U.S.C. § 12111(8).
6 42 U.S.C. § 12111(9)(B).
7 29 C.F.R. § 1630.2(o)(3).
8 29 C.F.R. § 1630, Appendix to Part 1630- Interpretive Guidance on Title I of the Americans with Disabilities Act §1630.9 p. 364. (This Appendix will hereafter be designated "App." All references are to the July 1, 1998 Regulations and Appendix.)
9 29 C.F.R. § 1630, App. § 1630.9 p. 364.
10 Cannice v. Norwest Bank Iowa, 189 F.3d 723, 727 (8th Cir. 1999).
11 Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 736 (5th Cir. 1999).
12 Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1135-1136 (7th Cir. 1996).
13 Hennenfent v. Mid Dakota Clinic P.C., 164 F.3d 419, 422 (8th Cir. 1998) (the employee's refusal of an independent medical examination after the employee's second leg was amputated caused the breakdown in the interactive process); Templeton v. Neodata Servs., 162 F3d 617 (10th 1998); Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 737 (5th Cir. 1999). The Loulseged opinion offers an excellent exposition of the factors to consider and how to determine the responsibility for the breakdown of the interactive process.
14 Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 737 (5th Cir. 1999).
15 Loulseged, 178 F.3d at 736 (5th Cir. 1999).
16 100 F.3d 1281, 1285 (7th Cir. 1996).
17 See for example Ralph v. Lucent Technologies, 135 F.3d 166 (1st Cir. 1998).
18 See Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 952 (8th Cir. 1999) ("when the disabled individual requests accommodation, it becomes necessary to initiate the interactive process"); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 315 (3d Cir. 1999) (holding that the employer's duty to engage in the interactive process is triggered "once the employer knows of the disability and the employee's desire for accommodations;" Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996); Taylor v. Principal Financial Group Inc., 93 F.3d 155, 165 (5th Cir. 1996) ("Thus, it is the employee's initial request for an accommodation which triggers the employer's obligation to participate in the interactive process of determining one"). But see Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (holding that the plaintiff must produce evidence that a reasonable accommodation is available before an employer is obligated to engage in the interactive process).
19 188 F.3d 944, 952 (8th Cir. 1999).
20 Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046-47 (6th Cir. 1998).
21 42 U.S.C. § 12112(b)(5)(A).
22 Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 164 (5th Cir. 1996).
23 See, for example, Riemer v. Illinois Dept. of Transp., 148 F.3d 800 (7th Cir. 1998). In Riemer, the employer transferred an asthmatic employee from the fabrication shop to the field. The court found the transfer an adverse employment decision violative of the ADA because the decision was based on stereotypic thinking about asthma (even though the employer had a medical opinion that asserted work in the fabrication shop would harm the plaintiff). The employer might have avoided this result if the employer had consulted with the employee in the interactive process prior to the transfer.
24 93 F.3d 155, 165 (5th Cir. 1996).
25 184 F.3d 296 (3rd Cir. 1999).
26 Cannice v. Norwest Bank Iowa, 189 F.3d 723 at 727 (8th Cir. 1999).
27 This is explained later in the article.
28 107 F.3d 483, 486-487 (7th Cir. 1997).
29 Fjellestad, 188 F.3d 944, 952 (8th Cir. 1999).
30 165 F.3d 1212, 1218 (8th Cir. 1999).
31 Loulseged, 178 F.3d at 736 (5th Cir. 1999).
32 Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (issued March 1, 1999) p.4.
33 Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1284 (7th Cir. 1996); see also Loulseged, 178 F.3d 731, 736 n. 5 (5th Cir. 1999).
34 181 F.3d 891, 894 (8th Cir. 1999).
35 Despears v. Milwaukee County, 63 F.3d 635 (7th Cir. 1995).
36 Gilday v. Mecosta County, 124 F.3d 760, 765 n. 7 (6th Cir. 1997); Hill v. Kansas City Area Transp. Auth., 181 F.3d 891, 894 (8th Cir. 1999).
37 Cannice v. Norwest Bank Iowa, 189 F.3d 723 (8th Cir. 1999).
38 Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1135-1136 (7th Cir. 1996).
39 Beck, 75 F.3d 1130, 1135-1136 (7th Cir. 1996); Loulseged, 178 F.3d 731, 737-738 (5th Cir. 1999).
40 See Section V.
41 Loulseged, 178 F.3d 731, 736-738 (5th Cir. 1999).
Loulseged's characterization of Akzo's initial efforts as "unilateral" is a bit one-sided, given her deafening silence when they were presented to her. No matter how earnestly one party attempts to engage in an interactive process, its efforts can always be superficially characterized as unilateral if the other party refuses to interact. One cannot negotiate with a brick wall. While Loulseged now goes into great detail about the manifest injustice of the one-gallon proposal, she failed to vocalize any of these concerns at the time she allegedly realized that she was expected to use the container. Loulseged also wholly kept her own counsel in regards to the accommodation of her problems with waste solvent and sample transport, even though she testified that she believed these concerns were not addressed. And she continued to remain entirely mute when, in her presence, a potential solution to these problems--a tricycle--was being discussed. Indeed, not only did Loulseged testify that she never mentioned the accommodation issue after her initial conversation with Wheeler, she also made no detailed complaint touching on her disability in her letter announcing her reasons for then quitting.
42 See the cases cited in footnote 10 above.
43 Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997).
44 Loulseged v. Akzo Nobel, Inc., 178 F.3d 731, 739 (5th Cir. 1999).
45 The Civil Rights Act of 1991 (42 U.S.C. §2000e-k(A)).
46 See Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (holding that the plaintiff must produce evidence that a reasonable accommodation is available before an employer is obligated to engage in the interactive process).
47 Cannice v. Norwest Bank Iowa, 189 F.3d 723, 727 (8th Cir. 1999); Fjellestad, 188 F.3d 944, 952 (8th Cir. 1999).
48 213 F.3d 365 (7th Cir. 2000).
49 107 F.3d 1308, 1311 (8th Cir. 1997).
50 107 F.3d 1308 (8th Cir. 1997), quoting Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996).
51 Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit (November, 1997) Committee on Model Jury Instructions Eighth Circuit p. 94 § 5.02.