What to Do if Employer Ignores Request for Reasonable Accommodation
The Americans with Disabilities Act gives employees the right to a reasonable accommodation.
The Americans with Disabilities Act (ADA) prohibits discrimination against applicants and employees with disabilities. Employers may not, for example, refuse to hire someone or pay someone less just because that person has a disability. However, the ADA goes further than simply outlawing discrimination: It also requires employers to provide reasonable accommodations to allow employees to do their jobs.
What Is a Reasonable Accommodation?
A reasonable accommodation is assistance or a change in the job or the workplace that will allow an employee with a disability to do a job. Reasonable accommodations generally fall into one of these categories:
- changes to the job application process that will allow a qualified applicant with a disability to apply and be considered for the position
- changes to the work environment, the circumstances in which the work if performed, or the manner in which the job is done, that will enable a qualified person with a disability to perform the job's essential function, and
- changes to allow an employee with a disability to enjoy the same benefits and privileges that other employees enjoy.
Requesting an Accommodation
It is the applicant's or employee's responsibility to request the accommodation in the first place. The employer isn't legally required to anticipate that the employee needs an accommodation or to guess at what might help the employee.
Employees do not have to make the request in writing, nor do they have to use any particular language. (In other words, the employee doesn't have to mention the ADA or use the words "reasonable accommodation" in making the request.) They simply need to request that some workplace change be made because of a medical condition, impairment, or disability. Someone other than the applicant or employee (such as a spouse, coworker, or friend) can request the accommodation on the employee's behalf.
The Employer's Response
Once an employee requests an accommodation, the employer has a legal obligation to engage in a "flexible interactive process" with the employee. Essentially, this means the employer must talk to the employee and collaborate on finding a reasonable accommodation. The employer does not have to grant a specific accommodation requested by the employee, as long as the employer works with the employee to come up with an effective accommodation.
If the employee's need for an accommodation is not obvious, the employer may ask the employee to submit medical certification of the employee's disability and limitations.
Certain accommodations are not considered reasonable, and an employer is not required to make these changes. They include:
- eliminating an essential function of the job
- lowering production or performance standards, or
- providing personal items for the employee to use, such as a wheelchair, eyeglasses, hearing aid, or prosthetic limb.
An employer need not provide an accommodation that would create an undue hardship. If an accommodation would involve significant difficult or expense for the employer or would fundamentally alter the nature or operation of the business, that constitutes an undue hardship. Whether an accommodation creates an undue hardship depends on a number of factors, including
- the size and financial resources of the employer
- the employer's business structure
- the cost of the accommodation, and
- the effect providing the accommodation would have on the business.
Although many undue hardships are financial, that isn't always the case. For example, suppose an employee with attention deficit disorder (ADD) applied for a sales job for a computer company. The job entails walking a busy, open, showroom floor, demonstrating the features of various gadgets and making sales. The employee requests that the company accommodate his disability by providing him with a private office and requiring customers to come to his office one at a time to make purchases. Even if this is relatively inexpensive, it would constitute an undue hardship because it fundamentally changes the wide open, bustling shopping experience the company is trying to create.
If your employer has ignored your request for an accommodation, your first step should be to make sure you were understood. Put your request in writing, addressed to your manager and the human resources department, and specifically mention the ADA. Explain that you have a legal right to a reasonable accommodation for your disability. Even though the law doesn't require you to be so explicit, your employer may not understand its obligations or may not have fully grasped your request.
If the employer doesn't respond to a more specific request, it's time to talk to a lawyer. A lawyer can help you assess your situation and demand the accommodation to which you are legally entitled. Not surprisingly, many employers are quicker to respond when a lawyer is involved. A lawyer can also help you make sure the accommodation provided is suitable. And, if your employer continues to drag its heels or ignore you, a lawyer can help you file a charge of discrimination to protect your right to file a disability discrimination lawsuit.