Unreasonable Delay in Granting a Reasonable Accommodation is Actionable Under the ADA

Originally published by William Goren.

Before starting our blog entry, two lions of the civil rights movement passed away on the same day recently. C.T. Vivian and John Lewis. John Lewis happened to be the person who represented me in the U.S. Congress. Georgia Democrats have selected the Georgia state Democratic Party chair, GA State Sen., Nikema Williams, as his replacement. A special election has to be held to finish out the term. There is talk that the special election will be held in November. Georgia has a jungle primary system, which means that if no one gets 50% +1 than a runoff would have to be held in January. Since January would be the runoff date and a new Congress gets sworn in in January, our district could theoretically be without representation until January of next year. It is also quite possible, perhaps even likely, that the person nominated to replace Jon Lewis wins the special election outright. It is one of the most Democratic districts in the entire nation. So, very unlikely that the Republican, a person pardoned by President Trump, has any kind of a shot at all.

 

Also, July 26 is the 30^th anniversary of the ADA. Happy anniversary! So many people to thank. Certainly, you have to give a shout out to President George H.W. Bush for signing the ADA and to President George W. Bush for signing the ADA Amendments Act.

 

I know people often say that the ADA hasn’t changed much for people with disabilities with respect to getting people with disabilities hired and perhaps even retained. An article that I just published in the Federal Bar Association blog hopes to move that forward. That article can be found here.

 

Today’s blog entry is going to be a short one. It is a case that comes down from the Seventh Circuit decided on July 16, 2020. One of the few cases from the Seventh Circuit that I have seen recently actually go the way of a person with a disability. The case is McCray v. Wilkie. It discusses the question of whether a delay in providing a reasonable accommodation can be a violation of the ADA and how you might decide when such a violation exists.  Depending on the side of the aisle you are on, you would be surprised how often this happens. It is especially a problem when it happens at a college or university side because the semesters go so fast. It’s also a problem on the employment side because obviously a person with a disability cannot get to the same starting line to demonstrate what he or she can do. The more time that goes by the worse things get. Since this lawsuit involved a federal employee, the ADA was on one level not involved at all. However, §501 of the Rehabilitation Act specifically says that title 1 of the ADA are the rules that must be used in deciding whether disability discrimination against federal employees has occurred. So even though this is a Rehabilitation Act case, it is equally transferable to the ADA. Here are the critical points from the decision:

 

1. An unreasonable delay in providing accommodation for an employee’s known disability can amount to a failure to accommodate his disability in violation of the Rehabilitation Act of 1973.
2. Whether a particular delay qualifies as unreasonable is based upon the totality of the circumstances.
3. Factors to consider in deciding whether a particular delay is unreasonable include but are not limited to: 1) employer’s good faith in attempting to accommodate the disability; 2) the length of the delay; 3) the reason for delay; 4) the nature, complexity, and burden of the accommodation requested; and 5) whether the employer offered alternative accommodations.

 

Thoughts/Takeaways

1. We now have a decision from a U.S. Court of Appeals talking about how to figure out when a delay is unreasonable. It also stands for the proposition that an unreasonable delay of accommodations is actionable under the ADA.
2. The court specifically uses language that the factors to consider listed are not exclusive.
3. Remember, magic words are not required.
4. Always engage in the interactive process and do it right. With respect to doing the interactive process right, we discussed that here.

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