OutSolve’s EEO colleague, Toni Ahl, is an occasional contributor to our blog. The views, thoughts, and opinions expressed in this article belong solely to Toni and do not necessarily reflect the viewpoint of OutSolve or its employees.
Three of the statuses that the Equal Employment Opportunity Commission (EEOC) enforces include the furnishing of reasonable accommodation for employees who request accommodations. Providing a reasonable accommodation is an affirmative duty for employers unless doing so would create an undue hardship. The statutes are Title VII of the Civil Rights Act of 1964, as amended (Title VII), the Americans with Disabilities Act of 1990, as amended (ADA) and the Pregnant Workers Fairness Act (PWFA).
Every case that deals with reasonable accommodation must be considered individually. No two situations are alike. When thinking about reasonable accommodations, it is helpful to use a common sense approach. All of the statutes require that the reason for accommodation request be made known to the employer. However, there is not just one way that accommodation can be requested. There are no "magic words" employees must use. Additionally, the request may be made by a family member, a medical provider or someone like a job coach.
Employers are expected to enter into discussions with the person requesting the reasonable accommodation. This process is known as the interactive process. The employer and the employee should have a dialogue to determine the reasonable accommodation that will be provided. The employee need not necessarily be given the accommodation they request, but the accommodation provided must be effective. The process should not be long and arduous. There are organizations, such as the Job Accommodation Network (JAN) which can assist with determining what accommodations might be effective based on the facts of the case. JAN may be contacted at www.askjan.org. The ADA National Network is another great resources for assistance with reasonable accommodation issues. They may be contacted at www.adata.org. There are regional locations for the centers as well.
Individuals who have a physical and/or mental impairment which substantially limits one or more of major life activities is considered to be an individual with a disability for entitlement purposes. The ADA requires that employees requesting a reasonable accommodation be qualified to perform the essential functions of their position with or without a reasonable accommodation. The ADA does not require employers to suspend or remove essential functions of the position as an accommodation. Also, those individuals who have a record of having a disability as defined by the law may be entitled to a reasonable accommodation. The ADA also allows for an affirmative defense of direct threat. In this defense, an employer may assert that the employee would be a threat to themselves or others. However, the employer's assertion cannot be based only on stereotypes or assumptions.
The PWFA is slightly different from the ADA in that in some cases, essential functions of a position maybe suspended for an employee if the request is temporary, may be able to be performed in the near future and there is someone else who can perform the essential function. An employee who files under the PWFA cannot be forced to accept a reasonable accommodation unless it was reached through the interactive process.
Employees who request reasonable accommodation under the Title VII due to religion will usually be requesting accommodation to attend religious services, to be off work for certain periods of time and/or for an exemption to a dress code. An accommodation may be requested for grooming standard exemptions also due to religious beliefs and tenets.
All three statutes provide an affirmative defense for employers if they allege that providing the accommodation would be an undue hardship. Conditions to considered as to whether an accommodation might be an undue hardship is the cost of providing the accommodation in reference to the financial resources of the business or whether the accommodation may cause a disruption to the operations of the business. Both the cost or the disruption must be significant. These two factors will always be determined as to whether there is an undue hardship to provide an accommodation on a case-by-case basis.
If your company or organization would like more information about reasonable accommodation and/or undue hardship, feel free to reach out to me at eeoadvantage@gmail.com or 502.553.7648.