• Interactive Process is an Ongoing Duty under the ADA
  • May 6, 2003
  • Law Firm: Miller Nash LLP - Portland Office
  • The Ninth Circuit recently confirmed that an employer has an ongoing duty under the Americans with Disabilities Act ("ADA") to engage in an interactive process with a disabled employee requesting accommodation. In Humphrey v. Memorial Hospitals Association, ___ F3d ___ (9th Cir 2001), the employee was diagnosed with obsessive compulsive disorder which caused her to be very late to work or to not show up at all. Her employer permitted Ms. Humphrey to work a flexible schedule but that was not an effective accommodation. Ms. Humphrey then wanted to work from home as an alternative accommodation, but her request was denied because of her attendance and tardiness problems. No other accommodations were offered to Ms. Humphrey. After two more absences, Ms. Humphrey was fired.

    The general rule is that once an employer becomes aware of the need for accommodation, the employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. The interactive process requires communication and good-faith exploration of possible accommodations, and neither side can delay or obstruct the process. Employers who fail to engage in the interactive process in good faith face liability if a reasonable accommodation would have been possible.

    In Humphrey, the court emphasized that "an employer must consider each request for reasonable accommodation," and that "if a reasonable accommodation turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship." The court found that the employer's rejection of the work-at-home request and its failure to explore other accommodations, once it was aware that the initial arrangement was not effective, constituted a violation of its duty to engage in the interactive process.

    Discharge for Refusal to Sign Non-Competition Agreement Constitutes Wrongful Discharge

    Under Oregon law, non-competition agreements are not enforceable unless the agreement is entered into upon initial employment or subsequent advancement of the employee with the employer. In a recent Oregon case, the Court of Appeals held that an employee who is discharged for refusing to sign such a non-competition agreement during employment may sue for wrongful discharge.

    States may not be Sued under the ADA

    The United States Supreme Court recently ruled that state employees cannot sue in federal court for money damages based on a state's failure to comply with Title I of the ADA. The case was brought by two employees against state agencies. The respective state agencies both claimed that they were immune from liability under the ADA, under the doctrine of sovereign immunity. The Supreme Court agreed.

    The Eleventh Amendment to the Constitution provides that nonconsenting states cannot be sued by private individuals in federal court. Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and "act[s] pursuant to a valid grant of constitutional authority." The Court reasoned in this case that the legislative record of the ADA failed to show that Congress had identified a history and pattern of irrational employment discrimination by the States against disabled people, and the rights and remedies created by the ADA are beyond what is constitutionally required of the states.

    The Court's ruling in Garrett applies only to public employers who are deemed to be an "arm of the state" and does not apply to private employers. Eleventh Amendment immunity also does not extend to local governmental entities, like cities and counties. The Court's holding in Garrett also does not leave employees without any recourse. Title I standards can be enforced by the federal government in an action for money damages, and by private individuals in actions for injunctive relief. Board of Trustees of Univ. of Ala. v. Garrett, U.S. Supreme Court, February 21, 2001.