THE THIRD CIRCUIT MAKES CLEAR THAT BEFORE PROVIDING AN ACCOMMODATION FOR AN EMPLOYEE’S DISABILITY, AN EMPLOYER MUST ENGAGE THE EMPLOYEE IN A GOOD FAITH INTERACTIVE PROCESS TO IDENTIFY AVAILABLE REASONABLE ACCOMMODATIONS

The Americans with Disabilities Act of 1990 (“ADA”) protects physically and mentally disabled employees from discrimination. Under the ADA, employers who fail to provide reasonable accommodations to people with disabilities may be found liable for discrimination. See Colwell v. Rite Aid Corp., 602 F.3d 495, 504-05 (3d Cir. 2010). As a rule, courts generally construe the New Jersey Law Against Discrimination (LAD) more liberally than the ADA.  See  Failla v. City of Passaic, 146 F.3d 149, 154 (3d Cir. 1998) (noting that LAD provides a ‘lower standard’ than ADA because ‘the LAD definition of ‘handicapped’ does not incorporate the requirement that the condition result in a substantial limitation on a major life activity’)

When an employee notifies an employer of their disability and requests accommodations, employers are obligated to engage in a good faith interactive process with them in identifying reasonable accommodations. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319 (3d. Cir. 1999). In fact, according to a recent Third Circuit decision in Lewis v. Univ. of Pa., 2019 U.S. App. LEXIS 23818 (3rd Cir. 2019), an employer cannot arrive at an accommodation for an employee’s disability without first seeking and considering in good faith the employee’s input.

In Lewis, a University of Pennsylvania (“UPenn”) Police Officer suffered from the skin condition Pseudofolliculitis Barbae (“PFB”).  PFB is a common condition of the beard area occurring in up to 60% African American men and other people with curly hair. The problem results when highly curved hairs grow back into the skin causing inflammation and a foreign body reaction; often this takes the form of keloidal scarring. https://www.aocd.org/page/PseudofolliculitisB.  Because of his PFB condition, Lewis requested UPenn to accommodate his disability by permanently exempting him from their grooming policy requiring him to periodically shave his face and neck.

Instead of engaging Lewis in identifying a reasonable accommodation, UPenn told him that according to their grooming policy in order to be exempt from shaving he was required to submit a medical certificate every 60 days. Lewis argued that UPenn violated the ADA because: (1) it failed in its duty to engage in a good faith interactive process with him; and (2) the medical certificate requirement constituted discrimination under § 12112(d)(4)(A), which provides that an employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Id. at *4-5.

UPenn argued, and the District Court agreed, that it could not be accused of failing to engage Lewis in a good faith interactive process because it granted exactly what he asked for; to not be required to shave and pointed to the fact that Lewis never asked to be exempt from the certificate requirement. Further, UPenn argued that requiring Lewis to provide medical certificates was lawful because Lewis could not show how filing the medical certificates would, “require[] repeated medical examinationsId. at *6. On appeal, the Third Circuit disagreed explaining that “[e]ven if the certificates at issue do not require examinations, they still qualify as a form of inquiry” under § 12112” as “[d]isability-related inquiries may include . . . asking an employee to provide medical documentation regarding his/her disability.” Id. (quoting EEOC Enforcement guidelines)

The Third Circuit did not decide whether UPenn acted in bad faith or whether exempting Lewis from both the shaving and certification requirements would have been a reasonable accommodation.  Rather, the Court concluded these issues were questions of fact which needed to be answered by a jury. Id. at *4-5.  In making this holding, the Third Circuit reasoned that under the ADA “an employee has no obligation to unilaterally identify and propose a reasonable accommodation.” Id. at *3(Citing Taylor at 315-17). UPenn was put on notice of Lewis’ accommodation request to be exempt from shaving, and it was not Lewis’ responsibility to ask UPenn that he also be exempt from the certificate requirement; this topic should have been raised by UPenn while engaging Lewis in identifying reasonable accommodations. Id. UPenn never helped Lewis identify the certification as something he may need to be exempt from as a reasonable accommodation.

At Mashel Law LLC, we are well experienced in handling disability discrimination claims. If you believe you have been the victim of unlawful discrimination call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.