Once an employer becomes aware of the need for accommodation for a qualifying disabled employee, that employer has a mandatory obligation under the law to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. An appropriate reasonable accommodation must be effective in enabling the employee to perform the duties of the position.
The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees, and neither side can delay or obstruct the process. A party or an employer that obstructs or delays an interactive process may be found liable for acting in bad faith.
The duty to accommodate disability is a continuing duty that is not exhausted by one effort. The EEOC Enforcement Guidance notes that an employer must consider each request for reasonable accommodation, and that if a reasonable accommodation turns out to be ineffective and the employee with disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship. This rule fosters the framework of cooperative problem solving contemplated by the law, by encouraging employers to seek to find accommodations that really work, while preventing employees from requesting the most drastic and burdensome accommodations possible.
One kind of evidence that an employee is wrongfully terminated because of his or her disability is evidence that that employee was warned and reprimanded for issues in his performance that were caused by his or her disability. As the 9th Circuit noted in Humphrey v. Memorial Hospital Ass’n 239 F.3d 1128 (2001), conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination. The link between disability and (wrongful) termination is particularly strong where it is the employer’s failure to reasonable accommodate a known disability that leads to discharge for performance issues resulting from that disability. Id.