No ADA claim without an available position for disabled employee

The Court of Appeals publishes relatively few cases interpreting the reasonable accommodation provision of the Americans With Disabilities Act, which allows disabled employees to stay on the job if the employee can perform the essential functions of the position with a reasonable accommodation that does not unduly burden the employer. This time around, the Second Circuit finds that a disabled worker cannot sue her former employer for disability discrimination because there was no available position.

The case is McBride v. BIC Consumer Products, decided on October 5. McBride worked for BIC, which manufactures pens and lighters, requiring the use of chemicals in the factory. After McBride developed a reaction to the chemicals, she took time off from work and tried to keep her job even though her doctor advised staying away from the chemicals. For reasons not explained in the opinion, McBride rejected management's proposed accommodation: a respirator that would deliver breathable air. She did not propose an alternative accommodation, and she did not have the education or experience to take on the other available positions at BIC. Summary judgment is affirmed, for three reasons:

First, McBride cannot show that any accommodation was available that would have allowed her to continue working around chemicals, and she rejected an accommodation that management proposed. Second, she has not identified any suitable position in the workplace for which she was objectively qualified. As the Second Circuit reminds us (drawing from the usual sources, including the ADA itself, EEOC regulations and case law), "the identified position is one for which she was qualified. An employee is qualified for a position only if she can perform its essential functions. ... [T]o be qualified for a position, a plaintiff must in addition 'satisfy the requisite skill, experience, education and other job-related requirements of the employment position." And, citing cases from around the circuits, the Court of Appeals holds that the desired position must not amount to an unwarranted promotion. Unfortunately for McBride, all the available positions required educational or workplace experience that she did not have.

Finally, the Court of Appeals (Walker, Livingston and Kaplan) resolves an issue that has lingered for some time now. Whether the employer's failure to take seriously the interactive process may give rise to liability under the ADA. The interactive process takes place when management and the employee try to work out an accommodation through give-and-take. What if the employer drops the ball in this regard? The other circuits have already held that management's failure to engage in the interactive process is not enough to win the case. There still has to be evidence of an available position for the employee. If there is no available position or accommodation, then the employer's failure to engage in the interactive process is harmless error. While, the Court of Appeals notes, the employer is increasing the chances of liability if it fails to engage in a sufficient interactive process, in order to win the case, the plaintiff must still show that an accommodation was possible.