Written by Jessica Catlow
Understanding the mandates of the Americans with Disabilities Act and similar state and local laws is easy: employers cannot discriminate against individuals with disabilities. However, navigating the reasonable accommodation requirements under these laws is no easy task for employers, especially when the laws only require employers to provide an accommodation that enables the employee to perform the essential duties of the position, rather than the one that employee necessarily prefers. A recent New York federal district court case, Goonan v. Federal Reserve Bank of New York, in which the employer failed to win early dismissal of a disability discrimination claim, highlights the importance of engaging in the interactive process correctly.
Plaintiff Bruce Goonan was an application developer at the Federal Reserve Bank of New York. Many of his duties could be performed remotely, and he telecommuted on Fridays. Nearly half of the employees who had similar responsibilities worked remotely. On September 11, 2001, Goonan was only a few blocks away from the World Trade Center when it collapsed. As a result, Goonan developed post-traumatic stress disorder, or “PTSD,” and sought counseling over the following years. Other than in his last review before his resignation, Goonan consistently maintained an overall “meets standards” rating in his annual performance reviews. In January 2010, the Fed moved a portion of Goonan’s group to the 23rd floor of Three World Financial Center, which overlooks the site of the World Trade Center.
Moving closer to the World Trade Center site caused Goonan’s PTSD to become worse. Goonan then requested that he move back to the main building, or, in the alternative, to be allowed to telecommute from home as a form of accommodation. Goonan provided letters from his treating medical professionals to support his request. Goonan’s supervisor replied that he would only be able to telecommute if his performance improved because telecommuting was a privilege. His supervisor directed him to Dr. Gerald Stagg, head of the Fed’s medical department about his need for accommodation.
The Fed ultimately denied Goonan’s accommodation request on the grounds that he was a poor performer and needed close supervision. As an alternative, the Fed offered a choice of accommodations that were given to another employee who had PTSD as a result of the attack on 9/11 and for whom the accommodations had been effective. Specifically, the Fed offered to (1) relocate him to another side of the office floor not overlooking the World Trade Center site, (2) allow him to use a “white noise” machine, (3) allow him to use headsets to play soothing music, (4) install multi-spectrum light in his work space, (5) divide larger assignments into small tasks or steps, (6) schedule weekly meetings with supervisors to see if deadlines were being met, and (7) provide assignments in writing via email.
Goonan felt that none of the offered accommodations would solve his issue, which was that he suffered from a crippling fear that another attack would cause the new tower to fall on him. In consultation with his doctors, the doctors told him that they thought the proposed accommodations would not be effective and possibly harmful. Goonan asked the Fed to reconsider his request to move out of the building, but the Fed denied it again reiterating that the request was denied because he was a poor performer. Goonan ultimately decided to retire because the Fed’s proposed accommodations would not help him resolve his problems with being in the building. Goonan subsequently sued the Fed for violations of the ADA and the New York State and New York City human rights laws.
In refusing to toss Goonan’s case, the court highlighted the importance of the interactive process under the ADA, which requires both the employer and the employee to engage in a process in which the employee provides the employer with sufficient information to enable the employer to understand the conditions and the limitations the employee has, and the specific request for accommodation, while working towards an accommodation to enable the employee to perform the essential duties of the job. The ADA does not require that the employer give the specific accommodation requested, so long as the accommodation provided is reasonable. The employer has the ultimate discretion to choose among effective accommodations.
The court found that there was a dispute of fact as to whether the seven promised modifications to Goonan’s work environment would have reasonably accommodated his disability. Neither of his doctors thought that any of the offered accommodations would be effective, and none of the accommodations addressed Goonan’s fear of being near the World Trade Center site. The court held that the fact that the accommodations may have worked for another employee with a similar disorder did not mean that they were suitable for Goonan, and nothing in the ADA required Goonan to test their effectiveness.
The court also found that the there was a dispute of fact as to whether the Fed engaged in the interactive process in good faith because it repeatedly denied his requested accommodation on the grounds that he was a poor performer. The court noted that other employees whose performance was below standard telecommuted full time. The Fed also said it could not move Goonan back to the main building because of cost and space issues, yet had moved other developers back to those offices. Despite Goonan’s efforts to work with the Fed to give it the information it needed to understand his accommodation needs, the Fed simply told him it was not going to change its mind. Feeling that the Fed was not going to provide him with his needed accommodation and because he could continue to work in the building near eth World Trade Center site, Goonan resigned.
Unless settled, a jury will determine whether the Fed violated Federal, state and city human rights laws in refusing to engage in the interactive process in good faith or in denying Goonan’s request to telecommute or work from a different office. While we don’t know the outcome just yet, we do know that it is essential that employers engage in the interactive process. Moreover, employers cannot deny the requested accommodation merely on the grounds that the employee doesn’t deserve it because of performance reasons, because, in the words of the court, such a reason “turns the rationale of the reasonable accommodation rule on its head.”