Yesterday, the Sixth Circuit announced its decision in Jakubowski v. The Christ Hospital, Inc. which very well demonstrates the attention that employers need to pay to the interactive process when an employee approaches it for a reasonable accommodation for a disability.
Jakubowski was a family medicine resident at Christ Hospital, which noted a number of deficiencies in his performance due to cognitive issues that were later diagnosed as Asperger’s. Specifically, Jakubowski was having difficulty communicating his thoughts to people and processing what people communicated to him. Upon receiving the Asperger’s diagnosis, Jakubowski’s attorney contacted the hospital proposing that it accommodate Jakubowski’s disability with “knowledge and understanding.” In other words, Jakubowski believed that he could successfully continue his residency if the hospital employees were made aware of his condition and its symptoms and triggers. He acknowledged that he would still need to improve his patient communication skills, but insisted he could do that on his own.
The hospital met with Jakubowski about the proposed accommodation, but advised him that it did not have sufficient resources to comply. The hospital, however, offered to assist Jakubowski in finding a residency in pathology, a field that requires little or no patient interaction. When the parties could not agree on an accommodation, Jakubowski was terminated and later filed a lawsuit. During the course of discovery, Jakubowski presented expert testimony identifying many ways in which the hospital could have accommodated his Asperger’s that apparently had not been considered by either Jakubowski or the hospital. In response, the hospital presented expert witnesses who offered opinions suggesting that Jakubowski's inability to communicate with other hospital employees and patients endangered the patients’ safety. The U.S. District Court for the Southern District of Ohio granted the hospital’s motion for summary judgment, finding that Jakubowski was not “an otherwise qualified individual” entitled to the protections of the ADA and Ohio disability discrimination laws.
Under the ADA, the term “qualified individual” means an individual "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” As a result, once it concluded that the ability to clearly communicate with hospital staff and patients was an essential function of Jakubowski’s job, the Sixth Circuit’s analysis focused on the interactive process. First, the court noted that Jakubowski had the initial burden to propose a reasonable accommodation, but concluded that his proposal did not remove a key obstacle preventing his successful performance of his work – the ability to communicate with patients themselves. The court then found that the hospital’s actions in giving consideration to Jakubowski's proposed accommodation and in offering a reasonable alternative demonstrated that it engaged in the interactive process. Therefore, the court upheld summary judgment in favor of the hospital.
Judge Cole wrote separately to concur in the Court’s overall finding upholding summary judgment for the hospital, but noted his disagreement with the majority’s analysis. Specifically, Judge Cole expressed concern that the majority opinion places an unreasonable burden on the employee at the time of the reasonable accommodation request to “muster a trial-ready accommodation proposal prior to termination" to prove that the employer unlawfully discriminated against the employee based on disability. In essence, Judge Cole contends that the majority opinion ignores the evidence presented by Jakubowski that there were many reasonable accommodation options available to the hospital. Despite these misgivings, Judge Cole ultimately concurred in the Court’s judgment because Jakubowski could not show that any of the alternatives proposed by his experts would have actually succeeded in remedying his Asperger’s-related job deficiencies.
Though Judge Cole certainly raises valid concerns, the Sixth Circuit got this one right. Though there are many situations where the employer may know better than the employee what accommodation alternatives are available, the ADA does not place the burden on the employer to propose, much less select, the reasonable accommodation alternative that is best for the employee. Failure to consider obvious reasonable alternatives may be a factor a court considers in determining the employer's good faith. To later demonstrate to the satisfaction of a court that it engaged in this process in good faith, however, the employer will be best served by maintaining an open mind towards suggestions made by the employee and thinking “outside the box” in an effort to find alternatives that might work. This open-minded perspective will be critical to employer defenses to disability cases in the future since the ADA amendments now make it easier for a plaintiff to establish that they have a disability.
Therefore, employers who find themselves defendants in disability discrimination actions increasingly will need to rely on their good faith efforts at reasonable accommodation as a defense.