CRITICAL ELEMENTS OF ADA CLAIMS CLARIFIED
(1998)

Recent decisions by the courts of appeals have clarified areas of concern for employers attempting to comply with the Americans With Disabilities Act ("ADA").

In Willis v. Pacific Maritime Association, the Ninth Circuit held that the ADA does not require an employer to violate the bona fide seniority provisions of a collective bargaining agreement to accommodate a disabled employee. This decision addresses an area often overlooked by employers in considering reasonable accommodation for a worker with a disability. Not only does the employer have a duty to determine whether some restructuring of the job or additional equipment might allow the employee to perform the essential functions of his or her job, but the ADA also requires the employer to consider whether reassignment to another position might be appropriate.

Reassignment will always present special problems where the terms and conditions of the employment relationship are governed by a collective bargaining agreement or some other type of bona fide seniority system that bars an employee from being reassigned if the reassignment would violate the seniority rights of other employees. The Ninth Circuit (which covers California and the rest of the western states) has now joined five other federal courts of appeals in ruling that reassignment of a disabled employee is not a reasonable accommodation if it conflicts with a bona fide seniority system.

In Barnett v. U.S. Air, Inc., the Ninth Circuit also clarified another murky area of the ADA, namely the "interactive process," which refers to discussions between the employer and the disabled employee regarding the employee's limitations and possible accommodations. The federal ADA regulations state that an interactive process, in some circumstances, "may be necessary." A number of employees have argued that the employer's failure to engage in the interactive process gives rise to an independent ground for liability even if no reasonable accommodation is possible. The Ninth Circuit in Barnett rejected this argument and held that an employer cannot be liable simply for failing to engage in the interactive process.

Employers should, however, be aware that the failure to engage in the interactive process may expose them to additional liability if it is ultimately determined that a reasonable accommodation was possible. Generally, an employer should discuss with the employee his or her disabilities and any proposed accommodations. Afterward, a written record should be made of such discussions and retained in the employee's personnel file. Furthermore, when a demand for accommodation is made the employer should consider consulting with an attorney and a rehabilitation expert because an employer's decision may later be second-guessed by similar professionals retained by the disabled employee.

California state courts have also clarified that individual supervisors cannot be named as defendants in ADA or Fair Employment and Housing ("FEHA") suits. In Reno v. Baird and Bourgeois v. Fireplace Manufacturers, Inc., the courts held that supervisors should not be subjected to the ever-present threat of lawsuits against them personally every time they make personnel decisions involving disabled employees. Individual supervisors may still be liable for harassment claims, but under both state and federal law they are no longer liable for disability discrimination claims.

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