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Monday, February 15, 2010

ADA Interactive Process-Employee’s Burden to Show Reasonable Accommodation

By Tommy Eden, Attorney

In McKane v. UBS Financial Services Inc., (11th Cir. Jan. 21, 2010) the Court held that an employer who failed to grant a requested accommodation did not violate the Americans with Disabilities Act (ADA) where the employee could not demonstrate that a reasonable accommodation existed. In such a circumstance the employer’s failure to engage in an interactive discussion was excused.

Tim McKane was terminated by UBS Financial Services Inc. for verbally abusing his co-workers in a meeting which occurred inside McKane’s office. UBS had previously denied McKane’s request to relocate his office away from others. He claimed that UBS had failed to engage in the interactive process regarding his requested accommodation and unsuccessfully arguing to the district court judge that by relocating his office he would have been able to perform an essential function of his job, which was to peacefully interact with his co-workers.

Under the EEOC guidelines, an employee with a disability is not entitled to the accommodation of his choice but only to a reasonable accommodation. An accommodation is reasonable and required only if it enables the employee to perform an essential function of the job and the employee bears the burden of identifying an accommodation and of demonstrating that the accommodation allows him to perform the job’s essential functions. Here McKane failed to demonstrate how moving his office to a remote location was a reasonable accommodation since he still needed to peacefully interact with co-workers. If an employee is unable to perform an essential job function, even with an accommodation, he is not an ADA qualified individual.

In a ruling that would mostly likely be different under the ADA Amendments Act of 2008, the 11th Circuit held that even if UBS failed to engage in an interactive process, McKane would not be relieved of his burden of demonstrating the availability of a reasonable accommodation, writing as follows: “Where a plaintiff cannot demonstrate a reasonable accommodation, the employer’s lack of investigation into reasonable accommodation is unimportant. Although McKane offered specific and concrete evidence of his request for accommodation, the issue was not whether an employee made a request for a specific accommodation but whether a reasonable accommodation even existed. The ADA provides no cause of action for failure to investigate possible accommodations. A contrary holding would mean that an employee has an ADA cause even though there was no possible way for the employer to accommodate the employee’s disability.”

Because the Court found that the employee was unable to demonstrate that he was a qualified individual under the ADA, it affirmed the district court’s grant of summary judgment in favor of UBS on his failure to accommodate claim.

Common Sense Counsel: This is a risky course of action. Employers should be careful when declining to engage in the ADA interactive process. The interactive process can uncover potential accommodations, and good-faith participation in the process can strengthen an employer’s position against an ADA claim. Remember to always make the employee go first. Also, make sure in every job description you include as essential functions “the ability to work cooperatively with supervision and co-workers” and “the ability to work in a constant state of alertness.” From the language of the opinion, this employee most likely would not be able to pass either test.

Tommy Eden is a Lee County native, an attorney with the local office of Constangy, Brooks & Smith, LLP and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-246-2901. Blog at