Litigation Lens: 7th Circuit Rules Reasonable Accommodations Must Be Effective, Not Perfect

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Michael Nail: Ogletree podcast listeners, Michael Nail back at you again. I’m a litigator in Ogletree’s Greenville, South Carolina, office, and I’m coming to you with a third episode of Litigation Lens where our Ogletree attorneys will bring the law to life with recent noteworthy employment law cases coupled with practical takeaways. And during this series you’ll hear about real cases with real outcomes analyzed by Ogletree lawyers across the country, in numerous practice areas. And today you have the privilege of listening to the third episode, which is also focused on an ADA case from the Seventh Circuit Court of Appeals involving reasonable accommodations. And just like the last episode of Litigation Lens, we spoke about an ADA issue in that one. And I also have Fiona Ong, a shareholder in Ogletree’s Baltimore, Maryland, office back with me today. Fiona, good to have you back. Can you reintroduce yourself to the listeners?

Fiona Ong: Well, sure. Thanks so much for inviting me back, Michael. I had such a great time last time, and I’m looking forward to this discussion. I am a shareholder in the Baltimore office, and I do a lot of advice and counsel on leave and accommodations issues, so this is particularly an area that I’m following.

Michael Nail: Well, great. Yeah, and I’m looking forward to jumping in and I know that we’re doing an ADA case just like we did last time, but as we spoke about on the second episode last time, the ADA is very fact intensive, so it never hurts to analyze these cases that are looking at different facts than listeners might’ve seen and then trying to apply those facts to a particular situation that they may encounter. I’m going to jump right into the facts and then hand it off to you for the holding, and then we’ll talk about some damages issues for the listeners as well as some practical takeaways. Looking at the facts here, this involved a U.S. Department of Veterans Affairs Hospital employee, also known as the VA hospital employee, with mobility issues who used a scooter at work and originally had a reserved parking spot near a locked storage room for his scooter. But when COVID-19 related restrictions caused the VA hospital to change which entrances employees could use due to precautionary measures related to the spread of the disease, he asked for a new reserved spot near the emergency room entrance. But the hospital denied this citing a lack of secure storage nearby, the need to keep handicapped spaces available for patients and the inability to guarantee the spot would always be open. In other words, the VA was arguing that his request for an accommodation was not reasonable. Instead, the VA offered a reserve space near another approved entrance with shared scooter storage, but the employee refused, wanting a locked room because of his fear that his scooter would be stolen.
And for several weeks he parked in the new spot and walked farther to store his scooter until his original entrance reopened. So, he sued the VA under the Rehabilitation Act, which is the federal employee analog to the ADA, claiming that the hospital had denied him a reasonable accommodation, and he sought recovery of damages for the pain and suffering attributable to the extra walking he had undertaken. Now, ultimately, Fiona is going to explain how the court got there, but the Seventh Circuit affirmed the District Court’s grant of summary judgment in favor of the hospital. So, with that, Fiona, why don’t you take it away. Tell us a little bit about what the court looked at from a factual standpoint and how they ultimately arrived at their conclusion.

Fiona Ong: Sure. As you mentioned, this case did arise under the Rehabilitation Act, and that is a law that prohibits disability discrimination against employees in the federal government. But it applies the same legal standards as the Americans with Disabilities Act, which is the law that applies to private employers. And both laws require employers to provide reasonable accommodations to qualified employees with disabilities to enable them to perform their essential job functions as well as to enjoy equal privileges and benefits of employment, which we had talked about last time. So, they have to provide these accommodations unless there’s an undue hardship. And in order to bring a failure to accommodate claim, the employee has to show three things. First, they have to show that the employer knew about their disability. Second, they have to show that they are an otherwise qualified individual, meaning that they can perform their essential job functions either with or without a disability. And then the third thing they have to show is that the employer failed to reasonably accommodate their disability. Now, in this case, the court focused on that third factor. Did the VA’s proposed accommodation reasonably accommodate the employee’s disability? Now, a reasonable accommodation enables the employee to perform his essential job functions. And according to the Seventh Circuit, this means that the employer has to do what’s necessary to allow the employee to work in reasonable comfort. And that’s actually a quote. Here, the employee initially made two arguments. First that the parking space was too far to walk, and second that he had no place to safely store his scooter. Now on appeal, the employee only made that second argument. So, the court determined that he had forfeited that first argument that it was too far away to walk. But on that scooter storage argument, the Seventh Circuit found that the proposed accommodation was reasonable.
The storage area, according to them, without a view from the public, it wasn’t in a common area, and it saw very, very little after hours traffic. Also, other employees stored their scooters there without any problem, and one of them even left their key in the scooter overnight and the scooter was fine. Now, the employee argued that the accommodation was unreasonable because he wanted a lock storage area like he had before, as you mentioned. But the Seventh Circuit pointed out under the law, an employee doesn’t have to provide the accommodation that the employee wants as long as the accommodation that they’re providing is effective, right? So, what the Seventh Circuit said, and I’m going to quote them, “An employer must only provide a reasonable accommodation, not a perfect one.” I think that’s a great quote. The employee said that he had heard a scooter had been stolen from another part of the hospital and that his scooter was at higher risk of being stolen because of its design. But the Seventh Circuit said that these concerns were just speculative, right? There was no actual basis for him to have these concerns that were in any way concrete. So, the Seventh Circuit also addressed whether the employer and the employee engaged in an interactive process to determine a reasonable accommodation. And just to remind folks what that means, under the ADA, employers and employees are supposed to engage in an interactive process when a reasonable accommodation is requested. And this means the employer and the employee should communicate with each other in good faith to identify the employee’s limitations that are caused by the disability and explore potential accommodations. Now here, there was certainly some back and forth, but the court considered whether that initial unilateral retraction of the employee’s original accommodation was a breakdown in the interactive process. And it said, “Well, yeah, it could have been.” But even assuming that it was, however, a failure to engage in the interactive process is not necessarily a violation of the ADA or the Rehab Act because courts focus on the end result. Was a reasonable accommodation provided? And here it was. An interesting part of this case was that the employee argued that any time an employer changes an accommodation, it has to show that the original accommodation now imposed an undue hardship. The Seventh Circuit had previously held that absent some change in circumstance, an employer can’t rescind an accommodation simply because it’s inconvenient or burdensome. But here it clarified that, first of all, there was a change in circumstance, right? A pandemic. That is a huge change in circumstance and the need for prevention measures to prevent the spread of COVID-19. So those were very significant changes in circumstance. But even further, the Seventh Circuit rejected the employee’s proposed rule that the employer has to show an undue hardship anytime it changes an accommodation. The Seventh Circuit pointed out that the employer gets to choose the reasonable accommodation. This is a principle that courts and other jurisdictions have reiterated. As long as the employer offers a reasonable accommodation that is effective, it has met its obligation under the ADA, and the accommodation doesn’t have to be the one that the employee wants or even the most effective one as long as it is effective. That I think were some really interesting holdings from that case, Michael.

Michael Nail: Absolutely, and you covered everything. That was super comprehensive, so I appreciate that. And as a litigator, and we’ll talk about, we’ll wrap things up with a few takeaways just to make sure that the listeners understand, but that was all that the court said, and it’s a very important holding to consider when you’re looking at these ADA reasonable accommodation issues. But as a litigator, I did the same thing with this case that I did with pretty much every case that comes across my desk. And that is I’m going to look at the facts. I’m going to look at how the facts apply to the applicable law, and I’m also going to look at the potential damages. I think it’s important to do that in most cases that we’re defending as employment lawyers. And I think you also, it’s important to look at the worst-case scenario perhaps.
If an employee is successful, a plaintiff is successful in proving one or more of the claims, then what are the potential damages? And when you’re looking at potential damages under the ADA, like most employment issues, you’re going to gravitate to monetary harm. But here, what the employee alleges is that he had to walk for a few extra weeks a little bit further than he typically would, and that exacerbated his hip pain. So, just looking at the facts of this case based purely on the Seventh Circuit decision, it doesn’t look like he sustained any monetary damage. So, what it looks like he gravitates to is pain and suffering, or in other words, more exemplary damages like compensatory, punitive damages. And these might be awarded in cases that involve intentional discrimination. And they’re really to punish employers who have committed, especially malicious or reckless acts of discrimination such as disability discrimination.
Now, in order to cross that hurdle, there’s a higher burden of proof. It’s a little bit tougher for employees to prove violations of that nature. And then if they are successful, there’s caps on those damages depending on the size of the employer. So, looking strictly at these facts, I think it would be unlikely that the employee would ultimately be successful in proving some sort of exemplary damage. I’m not really sure what he would be able to obtain if he were successful. But one thing I did see that was a little bit unique in the decision was that he specifically testified—the employee testified—that on those days of walking, he exacerbated his hip pain. Again, this isn’t addressed in the Seventh Circuit decision. It wasn’t an issue that was before them, but based purely on that statement in the decision, I also question whether or not this injury, this harm, this damage would’ve been subject to workers’ comp exclusivity.
And what I mean by that is the employee being forced to pursue his claims in a workers’ comp forum. Now, obviously that’s going to depend on the jurisdiction; it’s going to depend on the state, but typically, in most jurisdictions, if an employee is claiming physical harm and injury due to an issue that arises out of and in the course and the scope of their employment, then the proper forum for that issue to litigate that issue is within that particular state’s workers’ compensation forum. So that’s just one thing that I saw in the decision that I wanted to point out. And it’s important when you’re looking at facts and employers are looking at facts, to determine what types of damages might be at play, as well. But on the damages front, Fiona, was there anything else that stood out to you that you felt like was important we should point out?

Fiona Ong: No, I think that you really put your finger on the point here, which is that it’s an odd case because there are no monetary damages. So, he really would be very limited even if he had won his case, in what he could have recovered from the VA here.

Michael Nail: And that’s right. And looking at takeaways, I know we’ve talked about a lot, and I wanted to drill down a few takeaways for the listener. I want to see if you agree with me. I think number one, this case serves as a reminder to the listeners that ADA accommodations are flexible and focused on effectiveness. It might not be the accommodation that the employee desires, but if it’s effective, that is the standard.
Also, ADA accommodations are dynamic. As the circumstances change, the nature of the accommodation that’s required might change as well. Now, this might require engaging with the employee in an interactive process to discuss those possible changes and alternate accommodations that could be considered. And finally, we’ve discussed this throughout the podcast, but the employer is not required to provide the specific accommodation requested by the employee. But again, it must ensure that whatever accommodation is provided, enables the employee to perform the essential job functions, which again means effectiveness. Was there any other takeaways that you had for the listeners based on this Seventh Circuit decision?

Fiona Ong: I think you really covered the takeaways. I did want to go back and just mention one quirky little part of the decision, which is the Seventh Circuit saying that the employer’s unilateral rescission of the accommodation might’ve been a failure in the interactive process, even though it was followed up by a very clear interactive process. I just found that really curious, and you and I talked a little bit about it because it sort of suggests that an employer before they say, “We can’t do this any longer,” is supposed to have a conversation with the employee. And I’m not really sure that that’s correct. If an accommodation is no longer viable, there’s not much of a conversation to be had there. But I did want to at least highlight for our listeners that it is really important to engage in those conversations and to document them. It is really, really important to ensure that all of these conversations are written down so that if any question comes up later, there is a contemporaneous recording or statement or something that is going to reflect what that discussion was.

Michael Nail: I agree with you, and that’s a great point, and I don’t want to go out on a limb here, but I do think in most circumstances it’s better to err on the side of communicating. Maybe that’s not going out on a limb, but I do think that’s important under the ADA to document, like you said, engage in those discussions so that you do put yourself as an employer in the most defensible position possible if a claim were to arise. Would you agree with me on that?

Fiona Ong: Absolutely.

Michael Nail: All right. Well, with that, we really appreciate you listening in to the third episode of Litigation Lens. And be sure to stay tuned for more on this podcast. We’ll talk with you soon.

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