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Dec 22, 2014

By Eric B. Meyer

So just how did an employer snatch victory from the jaws of defeat after botching a diabetic employee’s request to work a modified schedule?

Back in 2011, the EEOC announced that it had sued Kohl’s Department Stores for disability discrimination. The EEOC claimed that Kohl’s “refused to accommodate a diabetic employee’s request for a regular schedule and forced her to quit.”

Allegedly, when the employee told Kohl’s “that the scheduled hours could kill her, its store manager laughed and told her that she would not accommodate her.” So, the employee had no choice but to resign her employment to protect her health.

Well, what the EEOC leaves out is that after the employer resigned, the store manager attempted to calm the employee down, asked her to reconsider her resignation, and requested that she contemplate alternative accommodations.

The interactive process requires good faith … on both sides

Now, let’s take a break here and talk about the interactive dialogue required when an employee with a disability requests an accommodation to perform the essential functions of her job. As the Appeals Court’s opinion (in Equal Employment Opportunity Commission v. Kohl’s Department Stores, Inc.) from last week stresses, both sides must exercise good faith:

The interactive process involves an informal dialogue between the employee and the employer in which the two parties discuss the issues affecting the employee and potential reasonable accommodations that might address those issues. … If an employer engages in an interactive process with the employee, in good faith, for the purpose of discussing alternative reasonable accommodations, but the employee fails to cooperate in the process, then the employer cannot be held liable under the ADA for a failure to provide reasonable.”

In this case, following the company’s initial “ham-handed” efforts to accommodate the employee, Kohl’s got its act together, but the employee refused to consider alternative accommodations and, instead, cleaned out her locker. Ten days later, when Kohl’s called her to again inquire about alternative accommodations, the employee never responded.

(The employee testified that the EEOC instructed her to stop talking to Kohl’s after she resigned. Yikes!)

On this record, the Appeals Court concluded that the employee refused to participate in the interactive process, while Kohl’s initiated an interactive process and displayed its willingness to cooperate twice with the employee:

In sum, when an employer initiates an interactive dialogue in good faith with an employee for the purpose of discussing potential reasonable accommodations for the employee’s disability, the employee must engage in a good-faith effort to work out potential solutions with the employer prior to seeking judicial redress.”

Employer takeaway

Even if you botch the interactive dialogue initially, it may not be too late demonstrate good faith — even after an employee resigns.

Explore the gamut of reasonable accommodations. If the employee refuses to cooperate, then you have a defense to a failure-to-accommodate claim under the Americans With Disabilities Act.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.