Seyfarth Synopsis: On January 17, 2023, the Tenth Circuit issued a decision in Norwood v. United Parcel Service . The Tenth Circuit affirmed the trial court’s decision in favor of United Parcel Service (“UPS”), holding that the Americans with Disabilities Act (“ADA”) does not require employers to immediately tell employees of approved possible accommodations or formally offer such accommodations as opposed to “informally” asking if the proposed accommodation(s) would satisfy the employee.
Plaintiff worked for United Parcel Service (“UPS”) for several years, including as a division manager, before her mental health began to decline due to personal difficulties. Among other things, she struggled to recall daily conversations, a requirement of her job. Due to these difficulties, Plaintiff’s manager informed her that she intended to place her on a performance improvement plan. This caused Plaintiff to suffer an anxiety attack and she requested a medical leave and an accommodation under the ADA. UPS instructed Plaintiff how to seek an accommodation and shortly thereafter Plaintiff went on medical leave.
During Plaintiff’s leave, UPS sent her an “accommodation packet” but Plaintiff did not return her paperwork so UPS closed the case. Upon Plaintiff’s request, UPS reopened Plaintiff’s case and she completed the accommodation paperwork. Plaintiff met with a committee consisting of UPS’s Human Resources Manager and other Human Resources employees for an accommodation meeting in which Plaintiff informed them of her medical restrictions and requested accommodations based on her restrictions. Specifically, Plaintiff requested to record meetings.
Following the meeting, the committee discussed Plaintiff’s accommodation requests and proposed reasonable alternatives to these requests, including designating notetakers and authorizing notetaking by Plaintiff instead of recording meetings, as she requested.
After the committee’s meeting, they contacted Plaintiff six times to inform her of the committee’s findings and propose alternative accommodations. Plaintiff informally refused alternative accommodation requests and repeatedly requested to tape record meetings despite the committee’s decision.
A few weeks later, Plaintiff informed UPS that she wished to retire, but despite submitting retirement paperwork, Plaintiff again asked that she be accommodated by being allowed to record meetings. UPS offered to reverse the retirement request and resume the accommodation process, including searching for open positions Plaintiff was qualified to perform. Plaintiff responded by again stating she wanted to record meetings and ultimately retired.
The Court’s Decision
The ADA imposes an obligation on employers to engage in a good faith interactive process to determine reasonable accommodations for employees with disabilities. The “interactive process” contemplates “an affirmative obligation to undertake a good faith back-and-forth process between the employer and the employee, with the goal of identifying the employee’s precise limitations and attempting to find a reasonable accommodation for those limitations.” Dansie v. Union Pac. R. R. Co., 42 F.4th, 1184, 1193 (10th Cir. 2022). As the Court noted, “[w]e have emphasized the importance of this good-faith communication ‘because each side will possess different information, all of which is critical to determining whether there is a reasonable accommodation that might permit the disabled employee to perform the essential functions of her job.”
Plaintiff argued that UPS acted in bad faith during the interactive process by concealing the possibility of a notetaker, as when she first spoke with UPS’s Human Resources Manager, his failure to reveal that UPS identified notetaking as a possible accommodation amounted to a “lie.” The trial court rejected Plaintiff’s argument and granted summary judgment for UPS.
On appeal, the Tenth Circuit found that UPS did not act in bad faith, as they regularly communicated with Plaintiff regarding a reasonable accommodation until Plaintiff retired. Moreover, even assuming that the Human Resources Manager purposefully concealed the proposed accommodation of a notetaker during their first meeting, “that did not end the interactive process, nor did it stop [the Human Resources Manager] from proposing a notetaker as an accommodation.”
The Court also rejected Plaintiff’s argument that UPS violated the ADA by not formally offering her the accommodation of a notetaker, and instead asking her whether it was acceptable. The Court noted that nothing in the statute or case law requires that an employer frame possible reasonable accommodations during the interactive process in declarative sentences rather than questions.
Implication for Employers
Employers have an obligation to engage in a good faith interactive process to determine possible reasonable accommodations under the ADA. But what does that process look like?
Based on the Court’s findings in this case, internal preparatory meetings do not obligate the company to immediately offer proposed accommodations. Rather, an ongoing formal or informal process is what is required under the law. Moreover, employers are not required to formally offer accommodations in any particular manner, and courts are unlikely to view the particular language in which accommodations are proposed as determinative as to whether an employer engaged in the interactive process in good faith.