Steven L. Brenneman, Teri F. Thompson, Elizabeth A. Ward, Editors
Ford & Harrison LLP

Vol. 18, No. 12
July 2008

REASONABLE ACCOMMODATION

No need to interact with officer who can't interact with inmates

The duty to accommodate disabled employees can still confound employers ― even 18 years after the Americans with Disabilities Act (ADA) was enacted. Just what must you do to accommodate an employee whose disabling condition prevents him from rotating through various positions as required? And just how far must you go to explore possible avenues of accommodation in the legally required interactive process? A recent decision from the Seventh U.S. Circuit Court of Appeals (which covers Illinois) should give you some solace.

A stroke of misfortune

In 1982, Liutauras Dargis began working as a correctional officer in the Cook County Sheriff's Office. According to all accounts, he was an exemplary officer. By the time he suffered a stroke while on duty in February 2000, he had risen to the rank of sergeant and supervised more than 75 other officers.

After his stroke, Dargis was hospitalized and then placed on short-term disability leave, which lasted more than a year. In June 2001, his doctor provided the sheriff's office with a letter identifying the numerous conditions from which he suffered, including the stroke, diabetes, and coronary artery disease. Those conditions, said the doctor, allowed Dargis to return to work but with the following limitations: (1) no physical contact with inmates, (2) no physical activity other than sitting in a chair with brief episodes of standing or walking, (3) no lifting, kneeling, stooping, or running, and (4) a work environment with adequate heat and air conditioning.

Based on his doctor's restrictions, Marcus Lyles, the department's assistant executive director and Dargis' supervisor, believed that he could no longer perform the essential functions of a correctional officer job, so he refused to return Dargis to work. According to Dargis, he repeatedly asked Lyles to place him in an assignment that didn't require regular inmate contact ― for example, in the prison tower, the security center, the records department, or the firing range. Lyles declined and instead placed him on "zero pay status," meaning he remained officially employed by the sheriff's office but received no pay.

Dargis filed a charge of discrimination and received a right-to-sue letter. He then filed suit in federal court under a variety of theories, including the ADA and constitutional due process. The district court agreed that the sheriff's office had violated his due process rights and ordered the department to give him a hearing before depriving him of his government job. However, the lower court dismissed his ADA claims before trial. Dargis appealed. Our focus here is only on his ADA claims.

Is rotation essential?

To establish a prima facie, or minimally sufficient, claim under the ADA, an employee must show that he (1) suffers from a disability as defined by the ADA, (2) is qualified to perform the essential functions of his job, with or without reasonable accommodation, and (3) experienced an adverse employment action due to his disability.

Although many ADA cases have been won or lost on the determination of whether the employee has a disability as defined by the ADA, that was hardly an issue for Dargis. His stroke and various other health conditions left no doubt that he was disabled.

But according to the sheriff's office, Dargis couldn't perform the essential functions of a correctional officer, with or without accommodation. The department claimed that a correctional officer must be able to perform each of 17 specific positions and duties ― the majority of which involve contact with inmates. Its written job description confirmed those requirements. The sheriff's office maintained that a correctional officer must be able to rotate through all 17 positions to be considered qualified to perform the essential functions of the job.

Dargis admitted that as a correctional officer, he had performed all 17 jobs; he also admitted he could no longer rotate through each one. He couldn't stand watch over inmates, break up fights, inspect cells, escort inmates, or search for escapees. But, he asserted, he could still do the job if only he was assigned to a position requiring no inmate contact, such as one of the jobs at the prison's entrances or exits, tower, or control center. He even claimed there were a few other officers who were assigned to positions without inmate contact because of their health or other conditions. Yet his evidence about those other employees was sketchy, and he had no proof that any of the others needed to avoid inmate contact at all times like he did.

The Seventh Circuit would have none of it. Requiring the sheriff's office to carve out a modified job for Dargis that included "very few of the duties all other correctional officers were expected to perform would have the effect of creating a new position for an employee who would not be otherwise qualified," said the court. The ADA doesn't require employers to "manufacture a job that will enable the disabled worker to work despite his disability." Dargis' inability to rotate through the various positions required of correctional officers meant he was unable to perform the essential functions of the job.

Interactive process may be short-circuited

Dargis wasn't done, though. He also claimed the sheriff's office failed to engage in the ADA-mandated interactive process to explore ways to reasonably accommodate him. Remember, once his doctor supplied the letter describing his restrictions, Lyles placed him on inactive status without further ado, despite his pleas for a modified job assignment.

Once again, the Seventh Circuit wasn't persuaded. According to the court, an employer's failure to engage in the interactive process doesn't violate the ADA if it can show that no reasonable accommodation was possible. In this case, Dargis' limitations, which generally allowed him to engage in only very limited physical activity and have no inmate contact, were so severe that no further discussion was required. Case dismissed. Dargis v. Sheahan, No. 05-2575 (7th Cir., May 16, 2008).

Correctional advice

Although the sheriff's ADA victory may seem effortless, here are a few pointers to keep in mind:

• The department helped its cause by having a written job description that supported its claim that the correctional officer job actually did require officers to rotate among 17 different positions. You should ensure that your written job descriptions are up to date and include all functions you deem essential.
• The department's position was buttressed by the "trump card" of public safety. The sheriff's office persuasively claimed that it must be able to call on all its officers to respond to emergencies like prison riots. Many employers in, say, modern manufacturing plants require employees to rotate through and cross- train in various positions, but those employers may face a more skeptical court in assessing whether they truly have a legitimate reason for requiring multiple duties for a particular job.
• Don't get carried away in concluding that the ADA-required interactive process is a dead letter. In this case, the department engaged in little, if any, effort to explore an accommodation, and the court agreed that nothing more was required because Dargis' disabilities couldn't be reasonably accommodated. But that's a risky tack to take. It's much better to attempt to explore possible reasonable accommodations once you're aware of an employee's disabling condition. Perhaps you'll conclude that there are no reasonable accommodations that would allow your employee or applicant to perform the essential job functions. But you'll be better able to defend your decision if you can show you attempted to engage in a dialogue to explore the options.

Copyright 2008 M. Lee Smith Publishers LLC

ILLINOIS EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Illinois employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.