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1st Circuit holding lightens evidentiary burden for plaintiffs seeking accommodations under ADA

In the recent decision Bell v. O’Reilly Auto Enterprises, LLC, Civ. Action No. 18-2164 (1st Cir. Aug. 21, 2020), the 1st U.S. Circuit Court of Appeals clarified the showing an employee must make to claim a right to a reasonable accommodation under the Americans With Disabilities Act.

sherwood-elizabethAccording to the 1st Circuit, an employee need not prove that he or she literally needs an accommodation in order to perform his or her essential job duties.

According to the 1st Circuit, an employee need not prove that he or she literally needs an accommodation in order to perform his or her essential job duties. Instead, if an employee has a disability and requests a reasonable accommodation, the employer may be obligated to grant the request, even if the employee could perform his or her job duties satisfactorily — albeit with some difficulty — without the requested accommodation.

Statutory framework

The ADA generally obligates employers to accommodate “the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.” 42 U.S.C., §12112(b)(5)(A). A “qualified individual” is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id., §12111(8) (emphasis added).

However, a requested accommodation must be “reasonable,” meaning that it must not constitute an “undue hardship” for the employer or change the fundamental nature of the job or the employer’s services. 42 U.S.C., §12182(b)(2)(A)(iii).

In determining whether a proposed accommodation would result in an undue hardship for an employer, the ADA directs employers and courts to consider a wide range of factors, including the nature and cost of the accommodation, the size of the employer, and the resources available to it.

Courts ordinarily place the initial burden of showing that a requested accommodation appears to be reasonable on the employee or applicant. See U.S. Airways v. Barnett, 535 U.S. 391 (2002). If the employee or applicant can clear that initial hurdle, then the legal burden shifts to the employer to show that the accommodation would constitute an undue hardship. Id.

Prior to the Bell decision, however, the extent to which an ADA plaintiff was obligated to prove a need for a requested accommodation — as opposed to a mere desire for it — was unclear. The 1st Circuit has now addressed that issue in a manner favorable to employees and applicants.

Factual background

The plaintiff, Brian Bell was employed as the manager of an O’Reilly Auto Parts store in Belfast, Maine. In his position, Bell was expected to be able to work at least 50 hours a week.

Bell had been diagnosed with Tourette’s syndrome, major depression, and attention deficit/hyperactive disorder (ADHD). Despite his disabilities, the parties agreed that Bell performed his managerial duties well, without any accommodation, for several months after he was hired. During that time, Bell worked approximately 53 hours a week.

However, after several employees resigned, Bell began working more than 15 hours a day, seven days a week. As a result of his grueling schedule, Bell began to deteriorate physically and emotionally, exhibiting trembling and uncontrollable motor tics while working in the store.

Eventually, Bell’s district manager told him that he would need to leave work and not come back until he was cleared as “fit for duty.”

Bell sought clearance from his mental health provider. The provider determined that Bell could return to work in a few days’ time, but only if his disabilities could be accommodated. She requested, as an accommodation, that Bell not be scheduled to work for more than nine hours a day, five days a week.

O’Reilly denied the provider’s request, citing the 50-hour minimum requirement of the position, and asked Bell to have the request form revised in accordance with that requirement.

The provider refused to change the form, however, stating that Bell was not precluded from working additional, unscheduled hours. Although the provider invited Bell’s district manager to call her if he had any questions about the form’s implications, O’Reilly instead proceeded to terminate Bell’s employment.

Bell then sued, alleging that O’Reilly had discriminated against him in violation of the ADA by failing to grant his request for a scheduling accommodation.

Trial court’s jury instructions

At trial, O’Reilly’s counsel argued that since Bell was able to work 50 total hours a week — including five unscheduled hours — he ipso facto did not need an accommodation limiting him to 45 scheduled hours.

O’Reilly’s counsel told the jury that “the judge will instruct you that even if you have a disability, you’re entitled to an accommodation only if you need that accommodation in order to do the essential functions of your job.”

The judge then instructed the jury that Bell could not prevail if he did not need the requested accommodation to do his job. The jury returned a verdict for O’Reilly, presumably based on the fact that Bell was able to work 50 total hours a week.

1st Circuit’s decision

On Bell’s appeal, the 1st Circuit overturned the jury’s verdict, finding that the trial court’s jury instruction conflicted with the ADA and had meaningfully contributed to Bell’s losing at trial.

The 1st Circuit explained that, contrary to the jury instruction, “an employee who can, with some difficulty, perform the essential functions of his job without accommodation remains eligible to request and receive a reasonable accommodation.”

Therefore, to prevail on a failure-to-accommodate claim, a plaintiff need only show that:  “(1) he is a handicapped person within the meaning of the [ADA]; (2) he is nonetheless qualified to perform the essential functions of the job (with or without reasonable accommodation); and (3) the employer knew of the disability but declined to reasonably accommodate it upon request.”

The 1st Circuit further clarified that an employee can succeed on such a claim even if he or she was performing well in the job, from the employer’s perspective, prior to the request for a reasonable accommodation.

As the court found that the erroneous jury instruction had been prejudicial to Bell’s case, it remanded the case to the lower court for a new trial.

Implications for employers

While an employee’s need for a requested accommodation remains an important factor for an employer to consider, the Bell decision underscores that employers (at least within the 1st Circuit) should not reject an accommodation request merely because the employee may be able to perform his or her job adequately without the proposed accommodation.

Instead, once an employee meets the ADA’s threshold requirements by showing that he or she has a disability but is able to perform the essential functions of the job, a court will examine the overall reasonableness of the requested accommodation, including whether the accommodation may constitute an undue hardship for the employer.

Under the 1st Circuit’s holding, the employee’s need for the requested accommodation should be viewed as just one factor in this inquiry.

It remains to be seen whether courts outside the 1st Circuit will rule on this issue in the same manner. Given, however, that the 1st Circuit based its holding on the plain language of the ADA, employers throughout the United States would be wise to anticipate this and to tailor their disability accommodation policies and practices accordingly.

Elizabeth L. Sherwood is an attorney at Schwartz Hannum in Andover, Massachusetts, which represents educational institutions and management in labor and employment law matters.

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