I
What is a good faith interactive process?

The ADA requires an interactive process whenever a person with a disability gives the employer, governmental entity, or business notice (broadly defined), that they are in need of reasonable accommodations/modifications as a result of a disability. What would a good faith interactive process look like in the employment context? It might involve the following: meeting with the employee who requested accommodation; requesting information about the condition and what limitations the employee has; asking the employee what he or she specifically wants; showing some sign of having considered the employee’s request; and offering and discussing available alternatives when the request is too burdensome. Goonan v. FRB of New York. As per my usual format, I have divided the blog entry into different parts: 1) what is a good faith interactive process; 2) what a good faith interactive process is not; 3) facts of the case; and 4) takeaways. The reader is free to focus on any or all of these sections.

II
What a good faith interactive process is not:

1. Only allowing the reasonable accommodation process to be used for those who are good performers;

2. Offering as an accommodation, accommodations that were put in place for someone else with the same or similar diagnoses while ignoring the individual with a disability that is seeking the accommodation;

3. Offering accommodations that either were not sincere or had no realistic chance of ever happening;

4. Offering accommodations where the person with a disability own doctors suggest that those accommodations might be ineffective or even dangerous;

5. Offering or strongly suggesting that an employee try out proposed accommodations to test their effectiveness even when that employee knows that the proposed accommodations being offered by the employer will not work;

6. The employer not actively participating, rather than just reacting or placating, in the reasonable accommodation process;

7. Demonstrating no flexibility throughout the reasonable accommodation process;

In this case, the court also allowed the retaliation claim to go forward because the accommodation the plaintiff was requesting, telecommuting, was being done by others but seem to go out the window once the plaintiff started making his accommodation requests.

III
Facts of the case

All of this is taken from the case linked to above. In this particular case, you had an individual who worked for 25 years for the Federal Reserve Bank of New York in the technology department. On 9/11 he was three blocks from the foot of the World Trade Center. He felt trapped and feared for his life as the towers burned and collapsed two blocks away from him. He sought out counseling and employee assistance over the next several years, all of which improved his condition and allowed him to work at the job site. However, in January 2010, the particular group he worked for moved to a site overlooking the site of the World Trade Center. Understandably, the move aggravated his pre-existing posttraumatic stress disorder leading to depression, anxiety, and nightmares. The plaintiff then contacted the federal director of medical services to ask for a referral to a posttraumatic stress disorder specialist for counseling. They had no such specialist and they referred the plaintiff to the employee assistance program, which was completely ineffective. This of course led to the plaintiff’s work performance declining and his depression deepening. What ensued is accurately summarized by the above.

Result: Federal Reserve Bank of New York’s motion for summary judgment denied.

IV
Takeaways:

1) This case is an excellent roadmap for how you might build a good faith interactive process. Also, it wouldn’t hurt to ensure that the person with a disability has access to needed medical professionals when necessary. One wonders how much of this could’ve been prevented if the Federal Reserve Bank of New York had access to a specialist that treated posttraumatic stress disorder.

2) Whether a person is a poor performer is absolutely irrelevant to whether they are entitled to reasonable accommodations. To make it relevant, as this court said, stands the ADA on its head.

3) If a person is seeking an accommodation that is already being done by others regardless of whether a disability is involved, such as telecommuting, make sure you have your ducks in a row before you deny that accommodation.

4) Be flexible during the interactive process and do not put people, and even those people with the same diagnoses, in the same box. The ADA requires an individual analysis.

5) While this case is an employment case, I see absolutely no reason why the lessons of this case cannot be applied in the title II and title III contexts as well.