November 8, 2000

EMPLOYERS MUST ENGAGE IN AN INTERACTIVE PROCESS TO IDENTIFY REASONABLE ACCOMMODATIONS AND MAY VIOLATE THE ADA IF THEY DO NOT.

AN EMPLOYEE DOES NOT CARRY THE BURDEN OF IDENTIFYING A REASONABLE ACCOMMODATION. 

AN EMPLOYER MAY BE OBLIGATED TO REASSIGN AN EMPLOYEE TO A VACANT POSITION REGARDLESS OF ITS SENIORITY SYSTEM. 

In an unusual "en banc" decision, the U.S. Court of Appeals for the Ninth Circuit emphasized the burden that employers carry under the Americans with Disabilities Act, reversing a decision in the same case by a three judge panel. Barnett v. U.S. Air, Inc., Case No. 96-16669. The Ninth Circuit oversees federal courts in Oregon and Washington, 

The Ninth Circuit held that "employers are required to engage in an interactive process with employees in order to identify and implement appropriate reasonable accommodations." The interactive process is triggered, the court explained, if the disabled employee requests accommodation or in "circumstances in which an employee is unable to make such a request" and the employer knows of the employee’s disability.

The court rejected the employer’s argument that the employee had the burden to show the availability of a reasonable accommodation. The court reasoned that imposing such a burden on the employee would effectively exempt the employer from the need to identify reasonable accommodations. 

The court held that an employer may be liable for failing to engage in the interactive process if a reasonable accommodation would have been possible. In addition, if it is unclear that the employer engaged in the interactive process, summary judgment dismissing the case would be inappropriate and a trial would be necessary. 

The court further held that reasonable accommodation may include reassignment although such reassignment may not be permissible under a company-imposed seniority system. The seniority system was simply a factor to consider as part of an employer defense that the accommodation would impose an undue hardship. Although the court did not address whether a seniority system created by a collective bargaining agreement would produce a different result, its analysis suggests it would make no difference.

Free electronic link to case cite: Barnett v. U.S. Air, Inc.,

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