12.7 ADA—Reasonable Accommodation

            To establish the plaintiff’s claim that the defendant discriminated against the plaintiff in violation of the ADA by failing to provide a reasonable accommodation, the plaintiff must prove, by a preponderance of the evidence, each of the following three elements: 

1.         the plaintiff is a “qualified individual”; 

2.         the defendant received adequate notice of the plaintiff’s disability and desire for a reasonable accommodation; and 

3.         a reasonable accommodation is available that would have enabled the plaintiff to [apply or qualify for] [perform the essential functions of] the job. 

            Under the ADA, [an] accommodation[s] by the defendant may include, but [is] [are] not limited to: 

1.         [modifying or adjusting a job application process to enable a qualified applicant with a disability to be considered for the position][;] 

2.         [making existing facilities used by employees readily accessible to and usable by individuals with disabilities][;] 

3.         [job restructuring][;] 

4.         [part-time or modified work schedule][;] 

5.         [reassignment to a vacant position][;] 

6.         [acquisition or modifications of examinations, training materials or policies][;] 

7.         [provision of qualified readers and interpreters][;] [or] 

8.         [other similar accommodations for individuals with plaintiff’s disabilities]. 

            It is for you to determine whether the accommodation[s] requested by the plaintiff [is] [are] reasonable. 

            A reasonable accommodation does not include changing or eliminating any essential function of employment, shifting any of the essential functions of the subject employment to others, or creating a new position for the disabled employee. 

            [If the plaintiff rejects a reasonable accommodation that could enable the plaintiff to perform the essential functions of the position, the plaintiff cannot be considered qualified for the position.] 

            [An accommodation is generally not reasonable when it consists of a request to be reassigned to another job position that would be in violation of an employer’s seniority system.  This general rule, however, does not apply if the plaintiff has proved, by a preponderance of the evidence, special circumstances such as [[the seniority system provides for exceptions] [the employer has exercised changes to the seniority system] [state other special circumstance]].] 

Comment 

            See Snapp v. United Transp. Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (“The ADA treats the failure to provide a reasonable accommodation as an act of discrimination if the employee is a ‘qualified individual,’ the employer receives adequate notice, and a reasonable accommodation is available that would not place an undue hardship on the operation of the employer’s business.”); see also Dunlap v. Liberty Natural Prods., Inc., 878 F.3d 794, 798 (9th Cir. 2017) (“Liberty was aware of or had reason to be aware of Dunlap’s desire for a reasonable accommodation.  Such awareness triggered Liberty’s duty to engage in the interactive process.”) (internal citation omitted).  

            The bracketed language as to special circumstances at the end of the instruction has been added as a result of language in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 405-06 (2002).  

            The factors listed in this instruction are derived from 42 U.S.C. § 12111(9) and 29 C.F.R. §§ 1630.2(o)(1)(i), (3), 1630.9(d).  See also Barnett v. U. S. Air, Inc., 228 F.3d 1105, 1112-14 (9th Cir. 2000) (en banc) (holding that interactive process is mandatory, not permissive duty of employer; employer has duty to initiate interactive process in some circumstances), vacated on other grounds, 535 U.S. 391 (2002). 

            In U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), the Supreme Court addressed a requested accommodation (reassignment from the position of cargo handler to that of mailroom worker) that conflicts with a seniority system.  The Supreme Court recognized that while ordinarily a proposed accommodation that would otherwise be reasonable becomes unreasonable when in conflict with a seniority system, an employee should have an opportunity to establish any special circumstances that may constitute an exception to the general rule.  See also Willis v. Pacific Maritime Ass’n., 236 F.3d 1160 (9th Cir. 2001), amended by 244 F.3d 675, 679 (9th Cir. 2001) (holding that employee’s proposed accommodation was per se unreasonable because it directly conflicted with bona fide seniority system established under collective bargaining agreement).  

            In PGA Tour v. Martin, 532 U.S. 661 (2001), the Supreme Court ruled that petitioner’s use of a golf cart that is normally prohibited during professional tour events is a reasonable accommodation for a professional golfer, disabled by a degenerative circulatory disorder impairing the ability to walk a golf course in a golf tournament.  The Supreme Court found that such an accommodation would not “fundamentally alter” a tournament.  Id. at 690. 

            Unpaid medical leave may be a reasonable accommodation.  “Even an extended medical leave, or an extension of an existing leave period, may be a reasonable accommodation if it does not pose an undue hardship on the employer.”  Dark v. Curry County, 451 F.3d 1078, 1090 (9th Cir. 2006).  However, “recovery time of unspecified duration may not be a reasonable accommodation (primarily where the employee will not be able to return to his former position and cannot state when and under what conditions he could return to work at all).”  Id.  In those jobs for which performance requires attendance at the job, “irregular attendance compromises essential job functions.”  Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233, 1237-40 (9th Cir. 2012) (holding that accommodation that would allow neo-natal intensive care unit nurse to miss work whenever she felt she needed to and for so long as she felt she needed was unreasonable). 

            The Ninth Circuit, in Josephs v. Pacific Bell, 443 F.3d 1050, 1060 (9th Cir. 2006), joined several other circuits in expressly recognizing discriminatory failure to reinstate as a separately actionable claim under the ADA.  

            The ADA does not impose a duty to create a new position to accommodate a disabled employee.  Wellington v. Lyon Cnty. Sch. Dist., 187 F.3d 1150, 1155-56 (9th Cir. 1999). 

Revised Oct. 2019