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ADA What Happens When Both Employer, Employee Fail Interactive Process?

by | May 16, 2023 | Disability Discrimination, Employment Discrimination, Employment Law, Federal Law Update |

Our disability discrimination lawyers have frequently blogged about disabled employees’ ability to workplace accommodations under the Americans with Disabilities Act (“ADA”). As part of that discussion, our attorneys have described that the interactive process requires both the employer and employees to engage in discussions to identify a reasonable accommodation for the disabled employee in the workplace. Further, the failure of the employer to engage in the interactive process is an independent violation of the ADA. On the other hand, the employee’s failure to properly participate in the interactive process, including providing necessary medical information and records, may result in the accommodation being denied and the employee having no claim.

But what happens when both the employer and the employee fail to properly engage in the interactive process – when both of them are found to be at fault? Recently, in Kinsella v. Baker Hughes Oilfield Operations, LLC, No. 22-2007, 2023 WL 3299706 (7th Cir. May 8, 2023), the United States Court of Appeals for the Seventh Circuit confronted this situation. First, the Seventh Circuit Court of Appeals set for the bilateral requirement for participation in reviewing an arbitrator’s decision:

”Both parties are required to make a ‘good faith effort’ to determine what accommodations are necessary, but if a breakdown of the process occurs, ‘courts should attempt to isolate the cause … and then assign responsibility.’” Lawler v. Peoria Sch. Dist. No. 150, 837 F.3d 779, 786 (7th Cir. 2016) (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)). This court has stated:

No hard and fast rule will suffice, because neither party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts 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. Beck, 75 F.3d at 1135.

Id. at *4.

In the case, the employee, Donald Kinsella suffered work-related injuries to his knee that left him unable to work for three years. During this time, he received disability benefits. In June 2016, his physician determined that he could return to work, but only in sedentary jobs. Baker Hughes’s human resources team, including Kristyn Martinez, an HR Business Partner, assisted him in finding suitable jobs at the company. Kinsella submitted an ADA Reassignment Request form to his employer as part of an interactive process to determine an accommodation. However, Martinez informed him that his previous field operator job could not accommodate his physical restrictions and gave him 30 days to find alternative work on the company website.

Although the 30-day period ended on August 20, 2016, Martinez spoke with Kinsella on August 31 and suggested that he apply for a sedentary dispatcher job by September 6. Kinsella failed to meet this deadline, and Martinez extended it to September 9, but he still missed it. Kinsella applied for the dispatcher job the following day but did not receive an extension approval from Martinez.

Baker Hughes’s internal documents indicate that Kinsella was rejected for the position on September 10. However, his application receipt, also marked with the same date, stated that Baker Hughes would review his application and qualifications. Kinsella did not follow up with the company about his application, and they hired a non-disabled employee for the position. Later, it was revealed that Kinsella had two separate profiles in Baker Hughes’s job application system, and Martinez was not aware of these profiles or his application.

On October 25, Kinsella received a termination letter from Martinez and his former supervisor for failing to apply for a position at Baker Hughes. Kinsella responded with proof of his application on October 31, and Baker Hughes began the process of reinstating him to his previous “inactive/long-term disability” employment status. However, discussions about this process stopped without explanation in 2017.

With this in mind, the United States Court of Appeals for the Seventh Circuit affirmed the decision in favor of the employer despite recognizing that the employer also failed to fully and properly engage in the interactive process:

The arbitrator discussed discriminatory intent solely in the context of finding fault on both sides for the breakdown of the interactive process to arrive at a reasonable accommodation for Kinsella. Kinsella applied after the deadline for the dispatcher position and did so without approval for an extension. Once he applied, he failed to keep Martinez apprised of his application. For her part, Martinez failed to review both of Kinsella’s profiles in the Taleo system. … On this basis, the arbitrator concluded that “there is fault on both parties in the interactive dialogue process,” and thus, that Baker Hughes did not fail to reasonably accommodate Kinsella’s disability.

Id. at *4-5.

The takeaway from this is that the tie goes to the employer. Thus, if your employer is not properly engaging in the interactive process, it is still critical for you as the employee to still attempt to engage, including providing any information requested of you, applying for other jobs in the company, and seeking out opportunities to discuss the disability accommodation process. Further, employees should document each of these efforts by email, text message, or other form of written communication.

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How do I figure out if my employer failed to properly engage in the interactive process?

It is best to have an attorney help you figure out if an employer violated the ADA by failing to properly engage in the interactive process because an attorney can provide legal expertise and guidance throughout the process. The ADA is a complex law that requires careful analysis and interpretation to determine whether an employer has violated an employee’s rights. An experienced employees’ rights lawyer can review the facts of your case and determine whether there is sufficient evidence to support a claim for a violation of the ADA. Disability discrimination attorneys can also help you understand your legal rights and the options available to you, including filing a complaint with the appropriate government agency, negotiating with your employer, or pursuing a lawsuit in court. Additionally, an attorney can help you navigate the complex procedural requirements involved in pursuing a claim under the ADA. They can help you meet deadlines, draft legal documents, and communicate effectively with your employer and other parties involved in the process.

Thus, if you have been denied an ADA accommodation or are facing disability discrimination at your place of work, you should call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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