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The process of accommodating disabilities is rarely static or simple. Information provided by an employee concerning the nature or extent of a limitation can often be found as incomplete or inaccurate. What happens when an employer relies on such information in terminating an employee who thereafter complains that information on restrictions was misconstrued? The question was recently answered by the 7th U.S. Circuit Court of Appeals, which rejected a teacher's accommodation request to not be near unruly students.
Sherlyn Brown was an assistant principal for the Milwaukee public school system. In 2006, she began to have knee problems. Consequently, the school system altered her duties to avoid physical intervention with students as an accommodation for her knee ailments. In 2009, she underwent surgery after injuring one of her knees while restraining an unruly student. In May 2010, her doctor advised that Brown's contact with "potentially combative students should be avoided."
In subsequent communications, Brown's doctors and union lawyer reiterated that she should not be placed in the vicinity of potentially unruly students. In light of the breadth of the restriction and noting that almost all students are potentially unruly, the school system placed Brown on an extended leave of absence.
About two and a half years into Brown's leave of absence, the school system advised her that her leave was about to expire. Brown's doctor contacted the school system and advised that Brown "should not be put in a position where she is responsible for monitoring and controlling students that may become uncontrollable." Finding a lack of vacancies that would not involve being around potentially unruly students or potentially monitoring such students, the school system terminated Brown's employment. Brown sued under the Americans with Disabilities Act (ADA), alleging a failure to accommodate her disability by denying her employment in vacant positions.
[SHRM members-only toolkit: Accommodating Employees' Disabilities]
In affirming a dismissal of the claim by a lower court, the appeals court noted that reassigning employees to vacant positions that they can perform can be a required reasonable accommodation. The issue of whether an employee can perform the job involves a two-way interactive process. As held by the appeals court, "if the employee does not provide sufficient information to the employer to determine the necessary accommodations, the employer cannot be held liable for failing to accommodate the disabled employee."
The appeals court concluded that it was Brown, through her medical providers, who told the school system that she could not work in the presence of students. Since the vacant positions involved the presence of students, the school system lawfully denied Brown an opportunity to work in those jobs. The appeals court noted that the school system repeatedly told Brown that it interpreted her doctors' restrictions as prohibiting her from having contact with students. Brown never challenged the broadness of that interpretation and, in failing to do so, did not satisfy her obligation under the ADA's interactive process. In short, the appeals court held, the school system could not be held liable for not placing Brown into a position that it believed would violate her restrictions.
Brown v. Milwaukee Board of School Directors, 7th Cir., No. 16-1971 (May 4, 2017).
Professional Pointer: The interactive process is critical both for ADA compliance and to ensure that unnecessary accommodations are not extended. The process also keeps open lines of communication so as to limit the types of misunderstandings that can fester and develop into claims of unlawful discrimination.
Scott M. Wich is an attorney with Clifton Budd & DeMaria, LLP in New York City.
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