Defending an ADA Case: A Road Map of What Not To Do

by Steve Bogue

Bogue, A. Stevenson
(402) 341-3070

A recent federal court decision in Pennsylvania provides something of a road map on how not to handle an ADA “reasonable accommodation” case. The employer in Zombeck v. Friendship Ridge was asleep at the switch with respect to an employee who had lifting restrictions and who ultimately was terminated.

First, the employer failed to initiate discussions with the employee after she requested a reasonable accommodation. The court found that violated the employer’s duty to actively explore reasonable accommodation. It found that the term “reasonable accommodation” includes an employer’s reasonable efforts to assist and communicate with the employee in good faith also called the “interactive process.” It observed that the requirement of an “interactive process” would have little meaning if employers, in the face of a request for an accommodation, were allowed simply to sit back passively, offer nothing, and then, in post-termination litigation, try to knock down every specific accommodation suggested by the plaintiff as too burdensome.

Second, the employer asserted that the employee was not really a “qualified employee” because she could not meet the lifting requirements of the job. However, the court pointed out that although lifting was listed as one of the physical requirements in the position description, it was not specifically listed as an “essential function.” Further, the court noted that for the last 13 years of the employee’s 18-year tenure, she had not been required to do any lifting.

Third, the employer contended that the employee was only working in a temporary light duty job which it had made the administrative decision to discontinue. The court affirmed that the ADA does not require that an employer accommodate a disabled employee by transforming a temporary light duty position into a permanent one. However, it found that the employer’s claim that the job in question was a temporary one was disingenuous. Indeed, the employee had spent the last 13 years of her tenure in the “temporary position,” and accordingly, the employer’s position was simply not convincing.

The decision in Zombeck illustrates the common sense principle that an employer cannot be passive in the face of potential or actual disability discrimination claims. It has the obligation to be active in its communications with employees regarding such claims, and to demonstrate that essential functions of the job are just that…essential, and not simply creations on paper. Updating job descriptions on a regular basis is a sound business practice.

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