Efforts To Provide Reasonable Accommoations Now Critical To Avoiding Liability

By Jon D. Hoag, SmithAmundsen LLC, www.salawus.com

Jeanne Gratzl suffered from incontinence as a result of pregnancy complications.  In 2001, she applied for a court reporter position with DuPage County working exclusively in the control room.  In this position, she was able to step away quickly to use the restroom, so she never had to make her supervisors aware of her medical condition.

A few years after Gratzl was hired, the Illinois Coordinator of Court Reporting Services issued a directive requiring all court reporters to rotate through live courtrooms as well as the control room.  Gratzl informed Chief Judge Ann Jorgenson about her medical condition and that it would prevent her from performing as an in-court reporter.  Gratzl also requested a leave of absence for scheduled surgery for a separate issue.  Judge Jorgenson approved the leave and subsequently sent correspondence to Gratzl stating that Gratzl needed to decide if she was going to participate in the full rotation.

Gratzl’s attorney submitted a formal request to accommodate Gratzl’s condition by returning her to work full time in the control room.  The request was supported by a letter from Gratzl’s physician.  The employer responded by offering to limit Gratzl’s assignments to juvenile courtrooms, which did not have jury trials.  Gratzl’s physician rejected the offer as inconsistent with Gratzl’s condition and insisted that she be returned to her position in the control room.

The employer sought to accommodate Gratzl by offering a number of possible accommodations, such as (1) allowing her to avoid assignments to any courtrooms in which a trial was scheduled; (2) not assigning her to juvenile courtrooms, which were farther from the restrooms; and (3) establishing a “high sign” that she could use to signal to the presiding judge that she needed a break.”  Gratzl rejected all of these proposals without first reviewing them with her physician.  The employer wrote to Gratzl and reiterated that the job duties for all court reporters required rotating through the court rooms and the control room.  The employer repeated its proposals of accommodations and set forth a deadline for Gratzl to identify specific reasons why the offer was incompatible with her medical condition.

Gratzl replied stating that her condition had not changed, so further back-and-forth debate served no purpose.  Gratzl was terminated and she then sued under the ADA.

The employer prevailed in large part because it took good faith steps to engage in the interactive process to identify a reasonable accommodation for Gratzl.  Although the ADA Amendments of 2008 (which expressly state that elimination of bodily waste is a major life activity) did not apply to this case, the case is still instructive because the court focused on the essential functions of the job and the employer’s efforts to identify reasonable accommodations for the employee to perform those essential functions.  Under the ADA Amendments of 2008, these are now the critical issues for ADA cases.
 
The court focused on the fact that Gratzl’s only suggestion for a reasonable accommodation was to return her to the control room position.  The court recognized that the concept of “reasonable accommodation” does not require an employer to create a new job or strip a current job of its principal duties.  Likewise, Gratzl’s employer was not required to maintain an existing position or structure that – for legitimate business reasons – it no longer needed or desired.  In short, Gratzl’s only suggestion was not reasonable as a matter of law and she had no reasonable basis for rejecting the employer’s proposals.

The court pointed out that employer’s are not obligated to provide an employee the accommodation she prefers – just one that is reasonable.  The court emphasized that the employer proposed a few different accommodations that were structured to conform to Gratzl’s physician’s recommendations.  The court went on to conclude that Gratzl rejected the employer’s proposals for personal reasons and, therefore, she was the one responsible for terminating the interactive process.  Accordingly, she was not entitled to relief under the ADA.

Under the ADA amendments, employers are forced to focus more on the accommodation process rather than whether a condition qualifies as a “disability” under the Act.  This case provides excellent guidance for how employers should handle employee requests for accommodation.  That is, employers should ask employees to submit ideas for reasonable accommodations supported by the employee’s physician review of how the employee’s condition relates to the essential functions of the job.  The employer can identify reasonable adjustments that address the physician’s recommendations and then put the burden on the employee to identify why the proposals are insufficient and/or come forward with other proposals for the employer to consider.  Employers should be sure to document the back-and-forth efforts to make a reasonable accommodation because this will be the critical aspect of the inquiry if the issue is ever reviewed by the court.    

If you have questions about making reasonable accommodations or questions about any other employment-related matter, please contact Jon D. Hoag, Esq. of SmithAmundsen LLC via email at jhoag@salawus.com.