The ADA Interactive Process: The Employer and Employee’s Duty to Work Together to Identify a Reasonable Accommodation Is More Than a Game of Five Card Stud

Since the Americans with Disabilities Act of 1990 (ADA) took effect, employers have struggled when trying to apply the act to real employment situations. Originally, federal protection against handicap discrimination was established in the Rehabilitation Act of 1973, which prohibits discrimination on the basis of handicap with regard to any program or activity receiving federal assistance. Precedent arising from cases decided under the Rehabilitation Act have served as guidance for ADA determinations. As ADA case law becomes more developed, however, courts are relying less on the Rehabilitation Act case law. In enacting the ADA, Congress specifically required that the Equal Employment Opportunity Commission (EEOC) issue regulations expanding on the legislation. In addition, the EEOC has drafted an appendix to the regulations which serves as the agency’s interpretive guide to the ADA. The regulations and interpretive guidance are given considerable weight unless they are contrary to the plain meaning of the statute. One of the most difficult questions under the ADA has been the definition of what constitutes a reasonable accommodation. Further, the more perplexing question for parties addressing any accommodation issue may be what the employer and employee’s duties are with regard to how each must work with the other in an effort to determine whether a reasonable accommodation can be provided. This article explores the employer and employee’s duties to participate in an interactive process in an effort to determine whether a reasonable accommodation can be provided