Employers Beware: Anything Short of a Robust Attempt to Engage in Interactive Process Might Preclude Summary Judgment

Several recent cases in the Sixth Circuit Court of Appeals remind employers that their obligation to engage in the interactive process is an increasingly onerous one. First, in Keith v. County of Oakland, No. 11-2276 (6th Cir. Jan. 10, 2013), the court remanded a case back to the district court to address whether an employer had an obligation to accommodate a profoundly deaf lifeguard. Previously, the employer relied upon a doctor’s conclusion that, “[h]e’s deaf; he can’t be a lifeguard,” and rejected the candidate. By relying upon the doctor’s conclusion, and otherwise failing to interact with or contact the applicant (who could have identified potential reasonable accommodations), the employer potentially violated the Americans with Disabilities Act’s (ADA) individualized inquiry mandate and failed to engage in the interactive process. Click here to see our earlier post on the Keith case.

In Buchanan v. City of Mt. Juliet, No. 3:11-CV-00265, (M.D. Tenn. Feb. 20, 2013), a case decided by a federal district court last week, an employer reached out to an injured employee several times during his two-month absence (to discuss functional capacity exams, among other topics), but only mentioned potential reasonable accommodations once. The employee responded that he was unsure what accommodations he would require to return to work. He was terminated approximately one month later. Relying upon Keith v. County of Oakland among other opinions, the magistrate judge held that the employer only “engaged in the interactive process just once with the plaintiff,” and therefore “a reasonable person could conclude from this alone that [the employer] did not engage in the interactive process with the plaintiff in ‘good faith’ as required under the ADA.” Furthermore, the magistrate judge found that even though “it is the plaintiff’s duty to propose an accommodation that is objectively reasonable to employers generally,” the plaintiff’s failure to do so did not obviate the employer’s requirement to engage in the interactive process in “good faith.”

The take-away from these opinions is that, at least in the Sixth Circuit, employers should anticipate an increasingly stringent review of an employer’s reasonable accommodation efforts at the summary judgment stage. Reliance upon a doctor’s opinion, a single reasonable accommodation discussion, or an employee’s own failure to propose an accommodation likely will not be sufficient to withstand summary judgment.