Ninth Circuit Holds that An Employer Must Engage in an Interactive Process with a Qualified Employee with a Disability Who Requests a Reasonable Accommodation under the ADA

On October 4, 2000, the Ninth Circuit Court of Appeals issued an en banc decision in Barnett v. US Air, Inc., 2000 WL 1468743 (9th Cir.(Cal.)), that significantly changes the way the Americans with Disabilities Act (ADA) will be interpreted and applied in this jurisdiction. In Barnett, the court found that, even though the plaintiff, due to his disability, could not perform the essential functions of his existing job with or without a reasonable accommodation, he was, nonetheless, a "qualified individual with a disability" entitled to protection under the ADA because he could perform the functions of a reassignment position, with or without a reasonable accommodation. The court also stated that, if the employer has a seniority system or collective bargaining agreement that reserves certain positions for employees with a given amount of seniority, that system or agreement will not be a per se bar to reassigning an employee without sufficient seniority to such a position as a reasonable accommodation, but will merely be one factor when determining whether it would create an undue hardship for the employer to do so.

Finally, the Court held that, under the ADA, employers are required to engage in an informal, flexible interactive process with qualified employees with disabilities in order to identify and implement appropriate reasonable accommodations. The interactive process is triggered either by a request for accommodation by a disabled employee or by the employer's recognition of the need for such an accommodation. As the court stated, "the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA … this obligation is triggered by an employee or an employee's representative giving notice of the employee's disability and the desire for accommodation. In circumstances in which an employee is unable to make such a request, if the [employer] knows of the existence of the employee's disability, the employer must assist in initiating the interactive process."

Citing EEOC's guidelines, the court outlined the four steps that an employer should follow when engaging in the interactive process:

1. Analyze the particular job involved and determine its purpose and essential functions;
2. Consult with the employee to ascertain the precise job-related limitations imposed by the employee's disability and how those limitations could be overcome with a reasonable accommodation;
3. In consultation with the employee, identify potential accommodations and assess the effectiveness each would have in enabling the employee to perform the essential functions of the position; and
4. Consider the preference of the employee to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer.

Effective January 1, 2001, the California Fair Employment and Housing Act will also require employers to engage in a flexible interactive process with qualified employees with disabilities who request reasonable accommodations. For appointing powers and employees who would like assistance when engaging in the interactive process, SPB offers mediation services through its State Employee Mediation Program, in which the participants may engage in confidential discussions with the help of an impartial, trained mediator who will assist the appointing power and the employee in finding a mutually acceptable resolution of reasonable accommodation and other medical/employment issues.