In the employment context, in order to be protected under the ADA, you have to have a disability and you also have to be qualified (until the amendments act the term was otherwise qualified but the meaning remains the same). Whether a person is qualified under title I of the ADA, depends upon whether that person possesses the requisite skill, training, and experience for the job and can perform the essential functions of the job with or without reasonable accommodations. Here’s the question. Let’s say you have a person with a disability who can perform the essential functions of the job with or without reasonable accommodations. However, the accommodation requested by the person with a disability doesn’t have anything to do with the essential functions of the job. Is that person entitled to the accommodation? The Fifth Circuit says that it’s a question of fact.
In Fiest v. State of Louisiana a former Assistant Attorney General for the Louisiana Department of Justice alleged that her employer discriminated against her by declining to provide her a free on-site parking space to accommodate her disability, osteoarthritis of the knee. She also alleged retaliation as well. District Court granted summary judgment to the defense because the plaintiff failed to explain how the denial of on-site parking limited her ability to perform the essential functions of her job. The plaintiff appealed arguing that the ADA does not require a link between a requested accommodation and the essential job function.
The Fifth Circuit- a unanimous decision of a panel consisting of Judges Davis, Jones, and Benavides- agreed with the plaintiff’s view that reasonable accommodations are not restricted to modifications enabling performance of essential job functions and reasoned as follows:
1. The text of the ADA says that reasonable accommodations can include making existing facilities used by employees readily accessible to individuals with disabilities. It also may include job restructuring, part-time or modified work schedules, reassignment to a vacant position acquisition or modification of equipment or devices, appropriate adjustment or modifications of examination, training materials or policies, etc. 42 U.S.C. § 12111(9)
2. The ADA text itself gives no indication that an accommodation has to facilitate essential functions of a person’s position.
3. The plaintiff’s accommodation request could well have made her workplace readily accessible to and usable by her, and therefore, be a reasonable accommodation under a separate provision of the ADA (see #1 above).
4. The implementing regulations of the ADA indicate that reasonable accommodations do not have to be related to the performance of essential job functions. For example, the implementing regulations require modification or adjustment to job application processes so as to enable a qualified person with a disability to be considered for positions that the qualified person with a disability desires. Another example from the same implementing regulation, is that the regulations require modification or adjustment to enable a person with a disability to enjoy the same equal benefits and privileges of employment as that are enjoyed by those without disabilities. 29 C.F.R. § 1630.2(o)(1). Therefore, to the court’s view reasonable accommodations break down into three categories, only one of which pertains to essential functions of the position.
5. EEOC guidance explicitly provides that providing reserved parking spaces may constitute reasonable accommodation under some circumstances.
The plaintiff also sued for retaliation. On this claim, the Fifth Circuit affirmed summary judgment for the employer because the employer was able to show a non-pretextual for the plaintiff’s dismissal and the plaintiff presented no evidence of pretext. In particular, the employer presented evidence that the plaintiff’s performance in her job was substandard and therefore, they had a legitimate non-pretextual reason for terminating her.
Takeaways: As far as I am aware, this is a case of first impression. I can’t recall coming across a case where the issue was whether reasonable accommodations in the employment context extended beyond the essential functions of a person’s job. Nevertheless, this case makes the argument that otherwise qualified (whether a person can do the essential functions of the job with or without reasonable accommodations), is an entirely different concept than reasonable accommodations. That is, under other provisions of the ADA, it may be possible to argue now by way of this decision, that a person is entitled to a reasonable accommodation even where that accommodation is not linked to the essential functions of the person’s job. Will this argument carry the day eventually? It’s hard to say. As mentioned above, to the best of my knowledge, this is the first case of its kind. Will you see the circuits eventually split? I think an argument can be made that a court could justifiably disagree. As many decisions have said title I is all about employment and therefore, reasonable accommodations should relate to the employment and must be read in the larger context of how it relates to the essential functions of the job. On the other hand, the equal benefits and privileges section of the implementing regulations does lead one to wonder whether reasonable accommodations would in fact extend, at least in some circumstances, beyond the essential functions of the job.