Lexology
Kramer Levin Naftalis & Frankel LLP
Kevin B Leblang and Robert N Holtzman
USA March 10 2010
A recent decision by the US Court of Appeals for the Second Circuit clarifies the extent of an employer's obligation under the Americans with Disabilities Act to engage in an interactive process with an employee to identify a reasonable accommodation. Importantly, the court held that an employer's failure to engage in an interactive process does not form the basis of a claim under the act in the absence of evidence that an accommodation was possible which would have permitted the employee to perform the essential functions of the job.
In McBride v BIC Consumer Products Manufacturing Co(1) McBride rejected an accommodation that BIC Consumer Products Manufacturing Co offered her on her return from medical leave. The parties did not discuss any additional potential accommodations and, notably, McBride never proposed any alternative accommodation. Although there were several vacant positions at BIC around the time of McBride's termination, she failed to demonstrate that she was qualified for any of the available positions. At the expiration of McBride's medical leave, BIC terminated her employment.
McBride argued that she should have been excused from having to provide evidence of an accommodation that would have permitted her to perform the essential functions of her position because BIC supposedly refused to engage in an interactive process concerning possible accommodations – an argument squarely rejected by the court. Rather, the court found that the act does not impose liability on an employer for failure to engage in an interactive process where no accommodation is in fact possible.
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