Richard W. Bunch, PhD, PT, CBES
Employers should have a good handle by now on when a reasonable accommodation is required as dictated by Title VII or when required for a covered employee with a disability as dictated by the Americans with Disabilities Act (ADA). In some cases, however, an accommodation that is deemed reasonable at first may be found to elicit problems on the job that were not anticipated. In such a case, can an accommodation be given, for lack of better words, a “test drive” and then withdrawn if found later to create an undue hardship?
Although the following case used to clarify the point that employers can “test drive” an accommodation deals with a religious accommodation, the same reasoning by the court would apply to a medical accommodation. In Kluge v. Brownsburg Community School Corp., a teacher objected on religious grounds to calling transgendered students by their registered first names in accordance with school policy, rather than those consistent with their sex at birth (an issue that may be arising more frequently in the workplace now). The teacher proposed, as a reasonable accommodation under Title VII, that he be allowed to call all students by their last name, “like a gym coach.” The school initially allowed this accommodation. However, students soon complained that they found this practice insulting and disrespectful, and that they thought it was due to the transgendered students, who were then targeted and isolated by their peers. Teachers also reported that they believed the use of last names was harmful to the students and disrupted learning because the students brought their concerns into other classrooms. The school informed the teacher that the accommodation was not working, and he subsequently resigned and sued for failure to provide a reasonable accommodation under Title VII.
In this case, the Seventh Circuit found that the “emotional harm to students and disruptions to the learning environment imposed an undue hardship to the school. Of particular interest, the Seventh Circuit stated, “Title VII does not require the school to adopt an accommodation that, although facially neutral, does not work that way in practice.” As shown here, the proposed accommodation, though reasonable on its face, ended up imposing an undue hardship on the school because it harmed students and the educational environment. Thus, it was lawful for the employer to withdraw the accommodation.
This case reminds employers that an accommodation, once granted, does not need to continue regardless. The actual impact of the accommodation, if it proves to impose an undue hardship on the employer, can be taken into account, and the accommodation may be discontinued. This gives employers and employees the flexibility to explore accommodations to see if they are, in fact, effective and the employer is not forced to tolerate them if it turns out that they are an undue hardship. This is also the case if the accommodation is initially workable, but circumstances change such that it later becomes an undue hardship.
Despite this favorable finding for employers, selecting an accommodation at the onset that does not prove later to create an undue hardship is much more cost effective for the employer and more beneficial to the employee. Choosing appropriate reasonable accommodations for those with medical disabilities means comparing functional deficits quantified and measured by a validated job-specific physical ability test to validated essential job functions of a job. WorkSaver Systems specializes in validating essential job functions, creating detailed functional job descriptions, and conducting job-specific EEOC Compliant Physical Abilities Tests for employers nation-wide. The WorkSaver System can be used by employers very effectively to determine if a job applicant or return to work case is able to safely work and if not, accurately use the WorkSaver System to help target the minimal reasonable accommodations required to work safely. WorkSaver also updates existing job descriptions to help ensure they accurately reflect the most current essential functions for each job.
For more information about WorkSaver services, please visit our web site at www.worksaversystems.com or e-mail Trevor Bardarson, PT, OCS, CBES at Trevor@worksaversystems.com. You may also call us directly at (985) 853-2214.
Reference: Ong, F., 2023, An Accommodation, Unlike a Diamond, Need Not Be Forever, Lexology, Shawe Rosenthal LLP