HR’s conduct in the “interactive process” lies at the heart of MOST “reasonable accommodation” litigation under the Americans with Disabilities Act (ADA). Unfortunately, in litigation, most employers have difficulty proving their good faith efforts, evidence that is ESSENTIAL to establish one of employers’ few statutory defenses under the ADA.
This course provides a clear checklist of considerations in the “interactive process,” with a special emphasis on
- Technological resources to facilitate (or minimize the impact of) several types of common accommodations; and,
- Public vocational resources, often untapped, designed to enable employment of people with disabilities.
But be warned: this program will also dive deeply into proposed “reasonable accommodations” that go too far, such as ones that (1) fundamentally alter, modify, or eliminate essential job functions; and/or (2) pose an undue hardship on employers. When can employers reasonably decline to implement a proposed accommodation or determine that a person with a disability is not “otherwise qualified” for the position?
Merrily Archer, Esq., M.S.W., the program presenter, confronted these questions directly in EEOC v. Picture People, and led the employer to victory in an over-broad (and frankly, really scary) EEOC prosecution. In Picture People, the federal government demanded that a retail employer substitute written notes and gestures for its strong oral communication skills requirement in a sales position . . . as a “reasonable accommodation” for a profoundly deaf employee. Picture People prevailed, in large measure, because it produced substantial documentary evidence proving the essential nature of fluid oral communications in its sales processes. In this program, Merrily will show practitioners how to shore up evidence of “essential job functions” and “qualification standards,” especially in light of the EEOC’s track record for substituting its judgment for employers’ regarding what constitutes minimally effective job performance.