Dance professionals would never confuse the “one-step” with the “two-step” and neither should employers when it comes to evaluating the reasonableness of a requested accommodation. The two-step analysis comes from the Supreme Court’s 2002 decision in US Airways, Inc. v. Barnett. The one-step analysis, much less favorable to employers, continues to be advanced by the EEOC in what we refer to as “the Barnett Slide.”
Barnett is the only decision from the United States Supreme Court concerning an employer’s accommodation obligation under the ADA. In Barnett, the Court held that in filling a vacancy, granting a preference to a disabled employee over more senior employees was not “reasonable in the run of cases” and such accommodation requests are unreasonable absent “special circumstances.” In accommodation cases, the Court held that an employee has the burden of proving that a requested accommodation is “reasonable in the run of cases” by showing that the accommodation is “reasonable on its face” or, if it is not, that “special circumstances” make the accommodation reasonable in the specific situation (the first step). If the plaintiff meets this burden, the employer may argue that the proposed accommodation poses an undue hardship on its operation (the second step).
Despite Barnett, the EEOC seems to continue to advocate a “one-step” analysis—an accommodation is reasonable unless the employer can prove it is an undue hardship. In a recent letter from the EEOC Office of Legal Counsel, the OLC stated “[w]hether leave granted as a reasonable accommodation is “excessive” must be determined by considering whether it imposes an undue hardship” and notes in a footnote that “[t]he EEOC regards the length of leave as an issue of undue hardship.” No reference to the Barnett two-step. Also, we posted recently about an EEOC Commissioner’s suggestion that additional job-protected leave is “always” reasonable because it is “plausible.” Again, no reference to the Supreme Court’s two-step analysis.
Given that the highest court in the land has already decreed that the two-step analysis applies to requests for accommodations under the ADA, the legal authority for the “Barnett Slide” is unclear, at best. In position statements, pleadings and jury instructions, employers should follow the two-step analysis and avoid the “Barnett Slide” into a one-step analysis.