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Participate In The “Interactive Process” To Impasse
Given the EEOCs aggressive disability stance, employers are encouraged to engage in the interactive process until it is no longer possible and/or no longer reasonable.  A recent decision issued by the First Circuit Court of Appeals in EEOC v Kohl’s Department Store illustrates why this tip is important.
Facts of the case:
The situation at issue in the case should be fairly familiar.  National department store chain Kohl’s employed Pamela Manning as a sales associate.  In January 2008 Ms. Manning transitioned from part time to full time (36-40 hours per week), “work[ing] predictable shifts which usually started no earlier than 9:00 a.m. and ended no later than 7:00 p.m.”  However, in January 2010 Kohl’s restructured its staffing system nationwide.  As a result, Ms. Manning’s schedule became hyperkinetic.  Like other full time sales associates who were required to work two night/evening shifts per week, Ms. Manning’s schedule “became unpredictable” and included a number of “swing shifts” (defined as a night shift followed by an early shift the next day).
In March 2010 Ms. Manning told her supervisor that this schedule “was aggravating her diabetes and endangering her health.”  The supervisor requested a medical note and Ms. Manning provided one signed by her endocrinologist.  The doctor reported that working irregular hours contributed to high glucose levels and recommended that Ms. Manning work “a predictable day shift (9a-5p or 10a-6p)" so she could better manage her condition and treatment.
Upon receipt of the information, store manager Tricia Carr conferred with Kohl’s corporate HR department, which instructed the store manager that Kohl’s could grant the “no swing shift” request but could not guarantee that Ms. Manning would not work nights.  Ms. Carr met with Ms. Manning on March 31, 2010 to discuss her request in more detail.  At the meeting Ms. Manning (according to her later deposition testimony) clarified that she wanted a predictable day shift schedule: "I was asking for a midday shift, what I had before, the hours that I had before [the departmental restructuring]."
Ms. Carr informed Ms. Manning that a day shift schedule would not be possible.  The discussion ended there.  “Manning became upset, told Carr that she had no choice but to quit because she would go into ketoacidosis or a coma if she continued working unpredictable hours, put her store keys on the table, walked out of Carr's office, and slammed the door.”  Ms. Carr followed Ms. Manning to the employee break room, “attempted to calm Manning down and requested that she reconsider her resignation and discuss other potential accommodations.”  Ms. Manning refused.  Two days later she contacted EEOC.  On April 9, 2010 Ms. Carr called Ms. Manning and again asked her to reconsider her resignation and return to talk about accommodations.  Ms. Manning again refused.
Kohl’s prevailed in litigation.
EEOC brought suit on Ms. Manning’s behalf in the United States District Court for the District of Maine.  The agency asserted that Kohl’s failed to provide reasonable accommodation in violation of the Americans With Disabilities Act.  The district court granted summary judgment for Kohl’s.  Although it found Ms. Manning to be disabled and to be able to perform the essential functions of the job with or without accommodation, the district court concluded that that Ms. Manning “had failed to engage in an interactive process in good faith.”
EEOC appealed this decision to the First Circuit Court of Appeals.  The three-judge panel considering the appeal affirmed summary judgment for Kohl’s by a 2-1 margin.  The majority observed that the interactive process is an informal bilateral dialogue between the employee and the employer for the purpose of discussing “the issues affecting the employee and potential reasonable accommodations that might address those issues.”
In this case it is clear that Kohl’s and Ms. Manning were involved in the interactive process.  It also is clear that the process stopped at some point.  On this point, the First Circuit majority concluded that Ms. Manning was responsible for the breakdown of the interactive process: she left the March 31, 2010 meeting; she confirmed her resignation when Ms. Carr followed her to the break room; and she rejected the April 9, 2010 invitation to reconsider resignation and resume the interactive process.
“We must emphasize that it is imperative that both the employer and the employee have a duty to engage in good faith, and that empty gestures on the part of the employer will not satisfy the good faith standard.  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 accommodations.”
Consistent with this, the appellate court upheld the lower court’s summary judgment order.
EEOC subsequently asked the three-judge panel to reconsider its decision and asked the full First Circuit to review the decision.  However, on February 13, 2015 the First Circuit denied these requests.
The HR Tip:
The First Circuit decision affirming summary judgment was 2-1.  The dissent did not believe that Kohl’s had done enough during the March 31, 2010 meeting, before Ms. Manning stormed out.  In particular, Ms. Carr did not assure Ms. Manning that it would be able to grant her request for no swing shifts.  In the dissenting judge’s opinion, this should have been enough to allow the case to go to a jury.  While the majority obviously disagreed, it is undeniable that this was a close case (the majority even described the initial response by Kohl’s as “ham-handed”).
What carried the day for Kohl’s was the extra effort to restart the interactive process.  Ms. Carr attempted immediately after Ms. Manning stormed out of the room to convince her to come back to the table.  Further, Ms. Carr telephoned Ms. Manning nine days later and asked her again to reconsider.
The lesson for employers is simply this: engage in the interactive process until it is no longer possible and/or no longer reasonable.  Kohl’s did that here; it pushed for interaction until Ms. Manning made it clear that she wanted no part of it.  Thus, continuing the process at that point was no longer possible.
If Ms. Manning had accepted the invitation to re-engage, then the obligation would have been on Kohl’s to participate in the process fully.  That process may have led to the conclusion that reasonable accommodation was possible; it also may have led to the conclusion that no reasonable accommodation was possible.
Article Courtesy of the Bullard Law Firm http://www.bullardlaw.com/
William Jordan
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