Accommodations: Reasonable Doesn’t Always Mean Preferred
By Frank Ferreri, August 12, 2024
Quick facts:
- An SEC attorney had dyslexia and ADHD, which affected her concentration and ability to read and write.
- The attorney was provided with accommodations, but the agency denied the mode of training she preferred for some of those accommodations.
- The court found the agency engaged in a good-faith interactive process for Rehabilitation Act
Those who have experience with the interactive process know an employee with a disability often is the best source for finding accommodations that will work best to ensure the employee can perform the essential functions of her job.
However, as Uygur v. Gensler, No. 24-975 (E.D. Pa. July 19, 2024) recently demonstrated, an agency doesn’t have to fulfill all of the employee’s requests to meet its Rehabilitation Act duties.
What happened in Uygur?
A longtime attorney with the U.S. Securities and Exchange Commission was diagnosed with dyslexia and attention deficit hyperactivity disorder, which impacted her concentration and ability to read and write. The SEC provided her with three computer training programs. The agency also assigned the human resources disability program officer to help the attorney install the programs and learn how to use them.
Within a couple of months, the attorney requested live, in-person training rather than the computer-based options. The attorney said she struggled with the SEC’s virtual training platform.
The agency had previously used a Philadelphia office to conduct in-person training on computer programs. The SEC denied the request because all Philadelphia-based employees, like the attorney, were participating in the training virtually.
The attorney submitted a letter from her physician explaining why in-person training was needed to address the attorney’s disabilities. The agency approved the attorney to attend an in-person conference in Washington, DC, which was the subject of a separate request. However, according to the attorney, the agency would not apply the letter to her request for in-person computer program training.
The attorney filed a complaint with the Equal Employment Opportunity Commission for disability discrimination and eventually was granted the right to file a civil action, which she did in the form of a Rehabilitation Act suit alleging a failure to accommodate.
To establish a failure to accommodate under the Rehabilitation Act, an employee must show:
- She had a disability, and the agency knew it;
- She requested an accommodation or assistance;
- The agency did not make a good-faith effort to assist; and
- She could have been reasonably accommodated.
In this case, only the third factor was at issue. That factor turned on whether the agency engaged in the interactive process. The court cited Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999) to explain that the interactive process under the Rehabilitation Act “does not dictate that any particular concession must be made” by an agency. Instead, agencies are required to make a good-faith effort to seek accommodations.
The court found SEC made the requisite good-faith effort to follow Rehabilitation Act requirements by:
- Allowing the attorney to attend the DC conference in person;
- Providing the attorney with three assistive computer programs; and
- Facilitating training on the computer programs, “albeit virtually as opposed to in person.”
The court faulted the attorney for not presenting enough evidence of her failure to accommodate the claim.
“The complaint provides no detail on whether, or how, [the attorney] was left unable to enjoy the equal benefits and privileges of employment by receiving virtual rather than in-person training on the three assistive computer programs provided to her as an accommodation,” the court explained. “Nor does the complaint allege … how [the attorney’s] ability to work, or her status at the SEC, were negatively affected by a lack of in-person training.” Id. at 7-8.
In the court’s view, the attorney was “provided every accommodation she requested except for her preferred method of training on the assistive programs.” Id. At 9.
As a result, the court dismissed the employee’s Rehabilitation Act claim.
The Lesson
A good-faith interactive process is one that rests on the agency and employee working together toward the shared goal of creating the work environment under which the employee will be able to perform the essential functions of the job. The Uygur court was satisfied with the agency’s efforts toward that goal because the agency delivered the “what” of the accommodations the attorney requested with only a slight deviation from the “how” of them.
It makes sense that an employee with attention-deficit challenges might do better in an in-person setting, but the Rehabilitation Act doesn’t require optimal accommodations, only reasonable ones. Although the court didn’t highlight it, it was probably also a plus that the agency didn’t rule out in-person training as categorically off-limits. Instead, it provided the employee with in-person options when appropriate and offered her the training needed to use the computer programs she requested. [email protected]
Related training:
- September 16-20: EEOC Law Week
- September 23-27: Absence, Leave Abuse and Medical Issues Week