Dive Brief:

• In failure-to-accommodate claims, it is employees who are responsible for showing that a reasonable accommodation existed at trial, the 9th U.S. Circuit Court of Appeals has ruled (Snapp v. United Transportation Union and Burlington Northern Santa Fe Railway Company, No. 15-34510 (9th Cir., May 11, 2018)).
• Danny Snapp, a Burlington Northern Santa Fe Railway employee, sued the company, alleging that it failed to provide him with a reasonable accommodation as required by the ADA. At trial, however, he was unable to point to a reasonable accommodation that would have enabled him to perform the essential functions of the job, the court said. A jury ruled in the employer's favor and he appealed, arguing that it should be the employer's responsibility to show that no accommodation existed.
• The 9th Circuit disagreed, upholding the lower court's ruling for the employer. In the 9th Circuit, it is the employer's responsibility to make such a showing at the summary judgment stage, if the employer failed to engage in the "interactive process" of looking for an accommodation outlined in the ADA's regulations. But that can't be the case at trial, the court said. Such a requirement could invite a jury to rule in an employee's favor, even if no accommodation existed, Paul Mollica of Outten & Golden LLP pointed out in a blog post, "which would be contrary to the ADA."

Dive Insight:

While the ruling may be good news for businesses headed to trial in the 9th Circuit, it doesn't change the fact that employers bear a great deal of responsibility when it comes to accommodation ideas.

On one hand, the ADA generally requires that employees request accommodations, and courts have largely held that they're also responsible for showing that one was available, if they're challenging an employer's compliance with the law.

But as the 9th Circuit pointed out, that's not always the case. And, because reasonable accommodations often are available, it can be risky to refuse to engage in the law's interactive process. The ADA's regulations actually acknowledge that it may take some back-and-forth before employers and employees arrive at an effective accommodation. This "interactive process" is supposed to be an informal process during which employers can work to understand an employee's limitations, consider options and even seek outside help from an organization like the Job Accommodation Network.

Failing to engage in this interactive process isn't a stand-alone violation, at least under federal law, but it can be evidence of discrimination, as the Snapp court noted. And, once an employee puts his employer on notice that he is having difficulty because of a physical or mental impairment, that process has been triggered. Experts suggest that employers train front-line managers to listen for comments that could amount to requests, as they're not always obvious. Employees don't need to use any special words and, in fact, don't even need to know that the ADA exists to be eligible for its coverage.