The EEOC's data show that about one-third of all disability employment discrimination claims involve an allegation of a failure by an employer to provide a reasonable accommodation to an employee's disability. The area of reasonable accommodation may be the messiest, most fact-specific, and most difficult area of disability discrimination law. Fortunately, the United States Court of Appeals for the First Circuit took a small, positive step towards clarifying the law of reasonable accommodation in Jacques v. Clean-Up Group, Inc., -- F.3d -- (1st Cir. September 19, 1996).

     1. The Facts Of The Jacques Case

     In the Jacques case an employee disabled with epilepsy quit working for an employer after the employer allegedly failed to make a reasonable accommodation to the employee. The employee could not operate any motor vehicle because of his epilepsy. The employee in the past had regularly used a bicycle to transport himself from his residence to the employer's main offices, which were located about two-and-one-half miles from the employee's residence. These facts were known to the employer. The employer offered a job to the employee to work full time starting at 8:00 a.m. each day at a customer location three miles from the employee's residence. The employee asked the employer to provide transportation for the employee to the job or, in the alternative, to let the employee use public transportation and start work at 10:30 a.m. instead of 8:00 a.m. each day. The employer rejected both requests and, without any further discussion, offered the job to another person (who was not disabled). The employer explained that as a small employer it simply did not have the resources with which to provide transportation for the employee to the customer location, and that the 8:00 a.m. start time was necessary because of certain work that had to be completed by 9:30 a.m. at the latest.

     The employee sued for disability discrimination and claimed (1) that as a reasonable accommodation the employee should have been allowed to start work at 10:30 a.m., (2) that as a reasonable accommodation the employer should have provided transportation for the employee from the employee's home to the work site, and (3) that the employer, in violation of EEOC regulations, failed to initiate a discussion with the employee about other reasonable accommodation alternatives. The case went to a jury trial. At trial, the employee did not explain why he could not have used his bicycle to transport himself to the customer location. The jury found in favor of the employer. The employee then appealed to the First Circuit Court of Appeals, which affirmed the judgment in favor of the employer.

     2. The Starting Time Was An Essential Function Of The Job

     Before and during the trial of this case, the employee argued that he should have been allowed to start work at 10:30 a.m. each day, but on appeal the employee abandoned this argument. To the Court of Appeals the employee conceded that starting work at 8:00 a.m. was an essential function of the job for which he had applied. The Court noted (1) that the evidence showed that the 8:00 a.m. start time was necessary so that a person performing the job could get certain work done by 9:30 a.m. each day, as requested by the employer's customer, and (2) that the jury's apparent finding that the 8:00 a.m. start time was an essential function of the job was consistent with the EEOC's regulation, which provides that "a job function may be considered essential because the position exists to perform that particular function." 29 CFR §1630.2(n)(2). The Jacques case thus supports the proposition that a particular start time may be an essential function of a job, but starting times are not always essential functions of all jobs. The EEOC's regulations, for example, specifically mention that a reasonable accommodation "may include but is not limited to . . . a part-time or modified work schedule." 29 CFR §1630.2(o). In another case, whether a particular job's start time may be found to be an essential function of that job will depend completely on the facts and details of that case.

     3. The Employer Was Not Required To Provide Transportation To Work.

     The employee claimed that the employer was required by the ADA to provide transportation to work as a reasonable accommodation to the employee. The jury rejected this claim, and the Court of Appeals affirmed the jury's verdict. The evidence at trial showed (a) that the employee apparently could have used his bicycle to transport himself three miles to work each day, (b) that the employer would have been unduly burdened by being required to transport the employee to work (no vehicles or other employees were reasonably available to provide transportation services to the employee), and (c) that the parties never discussed the cost of the proposed service (the employee apparently wanted to receive the transportation services for free). What is interesting about the employee's reasonable accommodation claim here is the potentially staggering impact on employers from similar claims alleged by other disabled employees. Since when does an employer have a legal duty to provide home-to-work transportation to a normal or regular worksite for an employee? In this case the Court did not reject the employee's reasonable accommodation claim on the ground that an employer may never be required to provide residence-to-work transportation, so although the employee's claim was rejected, the case unfortunately seems to leave the door open for a claimant in another case to claim that the ADA requires an employer to provide (free?) home-to-work transportation.

     4. The Employer Did Not Violate Its Duty To Discuss A Reasonable Accommodation With The Employee.

     The employee claimed that the employer failed, in violation of the EEOC's ADA regulations, "to initiate an interactive discussion" with the employee about possible reasonable accommodations. The evidence showed (a) that the employer had not engaged in any "interactive discussions" with the employee after the employer rejected the employee's requests for a later start time and employer-provided transportation, and (b) that the employee had "no proof that any informal interactive process would have actually borne any fruit." The jury rejected the employee's claim, and the Court affirmed. The EEOC's regulations both allow and encourage an employer to discuss possible reasonable accommodations with a disabled employee. Contrary to what many employers believe, an employer is not prohibited from discussing these types of matters with an employee. The EEOC's regulation states:

     "To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." 29 CFR §1630.2(o)(3).

     The Court held simply that the use of the word "may" in the regulations means that an employer is not invariably required to "initiate an interactive process." The Court noted that the "interactive process" was supposed to be a "shared" process and the employee "presented no evidence that he requested any other accommodations, inquired whether the [employer] had any suggestions, or otherwise indicated that he was still interested in finding a solution." The lesson to be learned from this case is that an employer may avoid claims under this regulation by asking an employee, more than once if necessary, "What other reasonable accommodations do you suggest, and how would you see those working out?"

     5. Litigation Realities In The 1990's.

     From an employer's point of view, perhaps the most disturbing aspect of this case is that although the case seemed to involve a relatively minor dispute between an employer and an employee about one job assignment, the case went through an entire federal court jury trial and an appeal. The employer was surely happy to win the case, but how much did the case cost to defend? The case is no less disturbing when put into context by the EEOC's Cumulative ADA Charge Data for 7/26/92 - 6/30/96, which show that only about 14% of ADA charges are resolved in favor of claimants; in other words, about 86% of all ADA charges are resolved in favor of employers. Hopefully, the decision in the Jacques case will help employers and employees avoid litigation in the future.

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Dated: January, 2000