Requirement of Bilateral “Good Faith” in Accommodating Disabilities

Posted on: Friday, January 23rd, 2015

In Equal Employment Opportunity Commission v. Kohl’s Department Stores, Inc., Docket No. 14-1268 (1st Cir. 2014), the United States Court of Appeals for the First Circuit recently affirmed summary judgment in favor of Kohl’s, dismissing an employee’s claims based on alleged disability discrimination and constructive discharge.  Judge Juan A. Torruella wrote for the majority noting the flawed Americans with Disabilities Act (“ADA”) claim given the employee’s “fail[ure] to engage in the interactive process” of seeking accommodations in good faith.

Pamela Manning is a Type 1 Diabetic.  She was a sales associate at Kohl’s, working predictable shifts starting no earlier than 9:00am and ending no later than 7:00pm.  Due to national restructuring in 2010, Kohl’s scheduled Manning to work various shifts at different times during the week.  As a result, her hours became unpredictable.  Manning soon informed Kohl’s that the alternating shifts were affecting her health, specifically her blood-glucose management.  After supplying Kohl’s with a doctor’s note, Kohl’s management met with Manning and attempted to address her scheduling requests.  During one meeting, Kohl’s responded that after consulting with corporate management, Kohl’s could not provide a consistently steady nine-to-five schedule.  Manning became upset during that meeting, told Kohl’s that she had no choice but to quit because she would go into ketoacidosis or a coma if she continued working unpredictable hours, put her store keys on the table, walked out of the store manager’s office, and slammed the door.  “Concerned, [the store manager] followed Manning into the break room outside, asking what she could do to help.”  During this conversation, the store manager attempted to calm Manning down and requested that she reconsider her resignation and discuss other potential accommodations.  Manning refused.  She cleaned out her locker and left the building.  A few days later, Manning contacted the Equal Opportunity Employment Commission seeking to file a discrimination claim.

To prove a discrimination claim under the ADA, Manning would have to establish that (1) she was disabled within the meaning of the ADA; (2) she was able to perform the essential functions of the job with or without reasonable accommodation; and (3) Kohl’s, despite knowing of the her disability, did not reasonably accommodate it.  This third element is where Manning’s claim failed.

The employee’s request for accommodation sometimes creates a duty on the part of the employer to engage in an interactive process and explore potential reasonable accommodations that might address the issues affecting the parties.  In this case, the First Circuit declined to recognize this absolute requirement of employer participation in the interactive process – after all, there was no need given Kohl’s active participation.  Thus, the question of an employer’s affirmative duty remains with the lower courts on a case-by-case basis.  See Kvorjak v. Maine, 259 F.3d 48, 52 (1st Cir. 2001) (“This court has not taken so categorical a stand on the interactive process, preferring instead to resolve the issue on a case-by-case basis”).  Such a duty requires bilateral cooperation, communication, and good faith.  In this case, Kohl’s made numerous earnest gestures to work to accommodate Manning.  “Manning refused to hear what Kohl’s had to offer.”

The Court found the district court correctly ruled in Kohl’s favor on all claims, repeatedly noting Manning’s refusal to discuss alternative reasonable accommodations given multiple offers by her employer.

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