holding that “the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and that this obligation is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for accommodation”
How later courts described this case
- holding that “the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and that this obligation is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for accommodation”
- explaining that one of the employer's offered accommodations was insufficient because "[t]hat a tool performs a similar function doesn't make it a proper tool for a particular job" and another offered accommodation was merely a recitation of "a right [the employee] already had"
- holding that employers “who fail to 6|| engage in the interactive process in good faith, face liability for the remedies imposed by the 7|| statute if a reasonable accommodation would have been possible.”
- holding that in light of the defendant’s “failure to engage in the interactive process, liability would be appropriate if ¿ reasonable accommodation would otherwise have been possible”
Written by the judges who cited it.
The opinion
RONALD M. GOULD, Circuit Judge,
with whom Circuit Judge THOMAS, joins, Concurring:
I concur in the court’s excellent opinion, but set forth my views concerning the relationship between the demonstration of reasonableness and undue hardship. The court’s opinion touches upon the relationship between reasonable accommodation and undue hardship. See Majority Op. at 1118 n. 4. I believe that a broader explication of this relationship is desirable.
Under the statute, a reasonable accommodation is one that will allow the employee to perform the essential functions of the job. An accommodation is reasonable if it will work for the employee. Reasonableness has nothing to do with the “difficulty or expense” that the employer will face in making the accommodation.
The ADA defines “reasonable accommodation” with examples of accommodations that self-evidently will assist people with various disabilities to perform the essential functions of their jobs. See 42 U.S.C. § 12111 (9). Nothing in the definition refers to the employer or to the effect on the employer of providing such accommodation. See Steven Miller, Disability Civil Rights and a New Paradigm for the Twenty-First Century: The Expansion of Civil Rights Beyond Race, Gender, and Age, 1 U. Pa. J. Lab. & Employment L. 511, 519 (1998) (noting this distinction).
The statute’s definition of “discrimination” supports this reading of “reasonable.” The ADA defines discrimination as a failure to provide a reasonable accommodation unless doing so would result in undue hardship to the employer. Discrimination is: “not making reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability ... unless such [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. § 12112 (b)(5)(A).
Undue hardship is defined as “an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).” 42 U.S.C. § 12111 (10) (emphasis added). This definition expressly includes economic considerations and other difficulties for the employer.
We must read a statute to give effect to each word in it, so that none are superfluous. See State v. Watkins, 939 F.2d 710, 715 (9th Cir.1991). The word “reasonable” in 42 U.S.C. § 12112 (b)(5)(A) must refer to something other than the effects of the difficulty or expense on the employer of providing an accommodation. The statute makes sense only if “reasonable” refers to the effects of the accommodation on the employee’s ability reasonably to perform the essential functions of the job and does not include effects of difficulty or expense on the employer.
This relationship between the demonstration of reasonableness and undue hardship has several virtues. First, it fits the ADA structure and follows the ADA’s text. *1123 Second, it avoids the evident confusion, in trying to give meaning to both “undue hardship” and “reasonable” if “reasonable” were to include the same effects on the employer as are considered in “undue hardship.” And third, the employee can better determine what accommodation will work for him or her, while the employer has greater access to information about whether a particular accommodation will cause an undue hardship.
Under the statute’s express terms, the “difficulty or expense” of an accommodation should not be considered in assessing “reasonable accommodation,” but, rather, considered only in assessing “undue hardship.”