Some guidance on the interactive process under the Americans with Disabilities Act

The Americans with Disabilities Act requires employers to work interactively with disabled employees to see if a reasonable accommodation exists that will allow the worker to keep his job despite his disability. We call this the "interactive process." What if the employer does not engage in the interactive process? Is that by itself a basis to hold the employer liable?

The case is Sheng v. M&T Bank, decided on February 2. I wrote about this case in the context of the admissibility of offers to settle the case under Federal Rule of Evidence 408. The Court of Appeals (Winter, Kearse and Cabranes) granted plaintiff a new trial because the trial court had improperly allowed the jury to know that plaintiff had rejected an offer to return to work under certain conditions. That was good for plaintiff. But plaintiff also argued on appeal that the trial court got it wrong in refusing to charge the jury that the employer's failure to engage in the interactive process by itself is enough for plaintiff to win the case. The Court of Appeals disagrees.

The Court of Appeals had previously held in McBride v. BIC Consumer Products, 583 F.3d 92 (2d Cir. 2009), that "failure to engage in an interactive process does not form the basis of an ADA claim in the absence of evidence that accommodation was possible." In other words, if management blows of the interactive process and there was no way to reasonably accommodate the plaintiff in any event, then it's a harmless error. No harm, no foul. But the Second Circuit this time around clarifies that "an employer's failure to engage in a good faith interactive process can be introduced as evidence tending to show disability discrimination and that the employer has refused to make a reasonable accommodation."