A recent decision by the US Court of Appeals for the Second Circuit clarifies the extent of an employer's obligation under the Americans with Disabilities Act to engage in an interactive process with an employee to identify a reasonable accommodation. Importantly, the court held that an employer's failure to engage in an interactive process does not form the basis of a claim under the act in the absence of evidence that an accommodation was possible which would have permitted the employee to perform the essential functions of the job.

In McBride v BIC Consumer Products Manufacturing Co(1) McBride rejected an accommodation that BIC Consumer Products Manufacturing Co offered her on her return from medical leave. The parties did not discuss any additional potential accommodations and, notably, McBride never proposed any alternative accommodation. Although there were several vacant positions at BIC around the time of McBride's termination, she failed to demonstrate that she was qualified for any of the available positions. At the expiration of McBride's medical leave, BIC terminated her employment.

McBride argued that she should have been excused from having to provide evidence of an accommodation that would have permitted her to perform the essential functions of her position because BIC supposedly refused to engage in an interactive process concerning possible accommodations – an argument squarely rejected by the court. Rather, the court found that the act does not impose liability on an employer for failure to engage in an interactive process where no accommodation is in fact possible.

Although the McBride decision may be useful to employers in defending themselves against Americans with Disabilities Act claims where it is unequivocally clear that no accommodation is available, best practice calls on an employer to engage in an interactive process with an employee who is potentially entitled to protection under the act. In fact, the McBride decision specifically cautions employers in this regard, stating that:

"an employer, by failing to engage in a sufficient interactive process, risks not discovering a means by which an employee's disability could have been accommodated and thereby increases the chance that it will be found to have violated the [act]."

Moreover, New York employers must remain mindful of the fact that New York state and New York City human rights laws may be interpreted differently from federal law and impose a more stringent burden on employers.

For further information on this topic please contact Kevin B Leblang or Robert N Holtzman at Kramer Levin Naftalis & Frankel LLP by telephone (+1 212 715 9100), fax (+1 212 715 8000) or email (kleblang@kramerlevin.com or rholtzman@kramerlevin.com).


(1) 583 F 3d 92 (2d Cir 2009).

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