REASONABLE ACCOMMODATION A. - 1 III. REASONABLE ACCOMMODATION A

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					III.      REASONABLE ACCOMMODATION

       A. Overview And Basic Principles

             1. Defined. An accommodation is a change in the work environment or in the
             manner in which duties are accomplished that enables a qualified individual with
             a disability to enjoy equal employment opportunities. Appendix to 29 C.F.R.
             1630.2(o).

                    i.     Roberts v. Progressive Independence, Inc., 183 F.3d 1215 (10th
                           Cir. 1999). Jury could find that employer failed to accommodate
                           assistive technology technician with cerebral palsy for required
                           business trip to Miami. At the time the trip was to take place,
                           plaintiff's employer had failed to make many necessary
                           arrangements for his care, and the arrangements for attendant care
                           it did make were insufficient for his needs. Thus, plaintiff was
                           forced to commit to an arduous and potentially dangerous trip with
                           inadequate planning and substantial uncertainties.
                    ii.    Smith v. Blue Cross Blue Shield, 102 F.3d 1075 (10th Cir. 1996).
                           One-time assignment of previous job duties to customer service
                           representative whose anxiety disorder resulted from her prior job
                           was not a failure to accommodate. A single insensitive act by a
                           manager who knows of the employee's disability does not
                           constitute a failure to accommodate.
                    iii.   Siefken v. Village of Arlington Heights, 65 F.3d 664 (7th Cir.
                           1995). Diabetic police officer who drove a squad car in an erratic
                           manner as a result of his failure to adequately monitor his
                           condition is not entitled to a second chance as a reasonable
                           accommodation. Reasonable accommodation means changes in
                           ordinary work rules, facilities, terms and conditions of employment
                           in order to enable a disabled individual to work. A second chance
                           is not a reasonable accommodation because it does not change any
                           aspect of work.
                    iv.    Marschand v. Norfolk and W. Ry. Co., 876 F. Supp. 1528 (N.D.
                           Ind. 1995), aff'd on other grounds, 81 F.3d 714 (7th Cir. 1996).
                           Railroad was not required to waive company policy that required
                           all current employees seeking alternative positions with the
                           railroad to submit to an aptitude test by the personnel department
                           as a reasonable accommodation to an engineer with post-traumatic
                           stress disorder who could not perform the duties of his position.
                           Assuming that the engineer meets the ADA's definition of
                           disability, the railroad provided him with reasonable
                           accommodation as a matter of law by offering him a choice of
                           three vacant clerical positions, vocational training or education,
                           and the possibility of qualifying for other vacant positions once he
                           was tested by the personnel department.


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       v.     The EEOC takes the position that employers must modify
              workplace policies to accommodate individuals with disabilities.
              The EEOC makes clear, however, that employers need not extend
              such modification to non-disabled individuals. EEOC Reas.
              Accom. Guidance, Question 24. For example, an employer with
              the policy of requiring employees to schedule vacations in advance
              would have to allow an employee with a disability who needs to
              use the vacation days without advanced notice because of
              disability-related medical problems to do so, unless this would
              cause undue hardship.

2. Failure to provide reasonable accommodation constitutes discrimination. An
employer's failure to provide reasonable accommodation for a qualified individual
with a disability is a form of discrimination under the Act unless the
accommodation poses an undue hardship. The obligation to make such reasonable
accommodation applies to all employment decisions and to the job application
process. 42 U.S.C. § 12112(b)(5)(A); S. Rep. at 31; H. Lab. Rep. at 62; Appendix
to 29 C.F.R. § 1630.9.
       i.      Montenez-Denman v. Slater, 208 F.3d 214 (6th Cir. 2000). The
               Federal Aviation Administration’s failure to provide an
               accommodation to an air traffic control specialist with multiple
               chemical sensitivity was not discriminatory. Plaintiff’s request
               that the administration create a fragrance-free work environment
               was impractical and overly burdensome, as it would require the
               administration to prohibit co-workers or anyone who entered the
               office from wearing scents or using cleaning products.
       ii.    Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir.
              1999). Employer could be liable for failing to accommodate
              hearing-impaired production worker even though plaintiff
              presented no proof of discriminatory animus against disabled
              employees. Proof of discriminatory animus is irrelevant to
              whether an employer failed to reasonably accommodate an
              employee’s disability.
       iii.   Crawford v. Union Carbide Corp., 202 F.3d 257 (4th Cir. 1999).
              Chemical manufacturer reasonably accommodated lab technician
              who could not lift heavy weights due to skin allergies and asthma
              when it offered her record clerk position. Although essential
              functions of record clerk position included heavy lifting, employer
              was aware of plaintiff’s lifting restriction and request for modified
              duty at the time it offered her the job. Thus, a reasonable inference
              existed that employer’s job offer included a reduction in lifting
              duties even though it never explicitly told plaintiff that she would
              not have to lift heavy weights. At the very least, plaintiff should
              have explored the matter further before refusing the job.
       iv.    McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999).
              Issue of fact existed as to whether county failed to reasonably


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            accommodate systems analyst with anxiety and panic disorder
            when it disciplined him for sleeping on the job. Reasonable
            accommodation requires more than merely treating disabled
            employees the same as non-disabled employees; rather, an
            employer who is aware of an employee’s condition and desire for
            accommodation is obligated to take reasonable measures that do
            not pose an undue hardship. Thus, even if defendant had a policy
            of disciplining employees who slept on the job, it could not
            discipline plaintiff without first attempting to work with him to
            correct his condition.
      v.    Roberts v. Progressive Independence, Inc., 183 F.3d 1215 (10th
            Cir. 1999). Employer's duty to accommodate assistive technology
            technician with cerebral palsy for business trip to Miami was
            triggered when request for accommodation was made, not when
            business trip was scheduled to begin. A request for accommodation
            having to do with a specific event in the near future triggers the
            employer's duty immediately; otherwise, the employer could evade
            its duty simply by waiting until the eve of the event and then
            claiming that it was impossible to accommodate employee in that
            short a time.
      vi.   Ralph v. Lucent Technologies, Inc., 135 F.3d 166 (1st Cir. 1998).
            Carpenter who suffered from depression was entitled to
            preliminary injunction allowing him to work part-time for four
            weeks despite the fact that employer had previously reassigned
            him and granted 52 weeks of paid medical leave. An employer's
            duty to provide reasonable accommodation is not exhausted with a
            single effort, and the relief requested by the employee would not
            cause permanent impact on employer.

3. Employee must demonstrate that an accommodation is necessary for the
performance of the essential functions of the job.

      i.    Champagne v. Servistar Corp., 138 F.3d 7 (1st Cir. 1998).
            Trucking company was not liable under ADA for attempting to
            reassign truck driver with anxiety condition to rotating routes in
            conformance with company policy after previously assigning him
            to fixed route in response to his condition. His anxiety, which
            caused him to be afraid to drive unfamiliar routes, did not
            substantially limit a major life activity, and he was thus not
            disabled under the ADA. As he was not disabled, his prior
            treatment by employer was not reasonable accommodation
            required by law, and new supervisor's attempt to enforce company
            policy did not constitute a threat to withdraw reasonable
            accommodation.
      ii.   Buckley v. Consolidated Edison Co., 155 F.3d 150 (2d Cir. 1998)
            (en banc). Utility was not required to allow former substance


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              abuser with neurogenic bladder additional time to urinate as
              reasonable accommodation. The proposed accommodation was not
              required under the ADA because it related to his non-disabling
              neurogenic bladder condition rather than to his disability.
       iii.   *Gaines v. Runyon, 107 F.3d 1171 (6th Cir. 1997). Epileptic postal
              worker seeking to be reassigned to another location did not
              establish a prima facie case of discrimination because he did not
              prove that the transfer was a necessary accommodation that would
              enable him to perform the essential functions of his position.
              Letters from his physicians were insufficient because they did not
              directly state or provide evidence that his location and times of
              work would cause a seizure to occur. The disabled employee must
              first demonstrate that without the requested accommodation, he is
              unable to perform the essential functions of his job.

4. Eliminate unnecessary barriers. When an individual with a disability is
qualified to perform the essential functions of a job except for functions that
cannot be performed because of related limitations and existing job barriers, an
employer must try to find a reasonable accommodation that would enable this
person to perform these functions. The reasonable accommodation should reduce
or eliminate unnecessary barriers between the individual's abilities and the
requirements for performing the essential job functions. TAM, § 3.2.

       i.     Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281 (7th
              Cir. 1996). Mentally disabled school custodian terminated for not
              reporting for work after being assigned to a school which he
              claimed was too stressful for him to handle with his condition
              stated genuine issue of material fact as to whether he was able to
              perform the essential functions of reporting to work and taking the
              physical exam necessary for the job. A reasonable accommodation
              may have enabled him to overcome his fear of working in a school
              larger than those in which he had worked in the past, the reason
              underlying his refusal to report to work.
       ii.    Lyons v. Legal Aid Soc'y, 68 F.3d 1512 (2d Cir. 1995). A staff
              attorney's request for a parking space next to her office because of
              her limited ability to walk substantial distances or stand for long
              periods of time is not a demand for an additional fringe benefit in
              the nature of a personal amenity unrelated to the essential functions
              of her job. The attorney's disability prevents her from taking public
              transportation or parking far away from her office and the courts.
              Therefore, a close parking space is an essential prerequisite to her
              work as a staff attorney for Legal Aid.




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5. A reasonable accommodation should be effective for the employee and should
provide a meaningful equal employment opportunity, that is, an opportunity to
attain the equal level of performance or to enjoy benefits or privileges equal to
those of a similarly-situated, non-disabled person. S. Rep. at 35; H. Lab. Rep. at
66; Appendix to 29 C.F.R. § 1630.9.

       i.     Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir.
              1999). Issue of fact existed as to whether employer failed to
              accommodate hearing-impaired production worker even though it
              issued a directive requiring co-workers to speak more loudly in his
              presence. Accommodation provided by company might not have
              been effective in light of the fact that plaintiff also complained that
              workplace heat was damaging his hearing aid; merely ordering co-
              workers to speak up would not have alleviated this problem.
       ii.    Brazas v. Bernalillo County Board of Commissioners, 202 F.3d
              281 (10th Cir. 1999). Deputy sheriff with post-traumatic stress
              disorder and knee injury was not entitled to wear knee brace at
              work as reasonable accommodation. Plaintiff presented no
              evidence that knee brace would have enabled him to perform the
              strenuous physical duties required of a deputy sheriff, and his
              proposed accommodation would thus not have been effective.
       iii.   Sheren v. Dayton Hudson Corp., 175 F.3d 1021 (7th Cir. 1999).
              Furniture store was not required to grant magnifier to salesperson
              with macular degeneration who had cataracts in both eyes and was
              legally blind in one. A magnifier large enough to be effective
              would have been practically immobile, and plaintiff's performance
              of her customer service duties would be hampered by the need to
              walk back and forth to the magnifier in a showroom covering one
              city block. Moreover, plaintiff would not have been able to advise
              customers on color choices even with the magnifier.
       iv.    Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d 1212 (8th Cir.
              1999). Customer service coordinator with multiple sclerosis and
              depression was not entitled to more breaks, air conditioning and a
              fully staffed department as reasonable accommodations when she
              only requested these accommodations at the meeting where her
              employer terminated her. An employer is not required to grant
              additional accommodations in lieu of termination; moreover,
              plaintiff provided no evidence that such accommodations would be
              effective in enabling her to perform the essential functions of her
              job.
       v.     Martin v. Lockheed Martin Missiles & Space Co., 187 F.3d 648
              (9th Cir. 1999). Clerical worker with back injury which made her
              unable to lift more than 10 pounds was not qualified for her
              position even though she testified that she could perform her job if
              provided with an "automatic staple removing device" or a manual
              paper cutter. Plaintiff did not present any evidence that an


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        automatic staple-removing device even existed, and physician
        testified that using a manual paper cutter would exacerbate rather
        than relieve her condition. Thus, plaintiff did not meet her burden
        of showing that a reasonable accommodation existed that would be
        effective in enabling her to perform the essential functions of her
        job.
vi.     McClure v. West, 182 F.3d 908 (4th Cir. 1999). Department of the
        Army reasonably accommodated computer programmer with
        chemical sensitivity by providing her with an enclosed work area,
        air conditioner and air filter and instituting a policy whereby all
        eighth- floor air units were required to remain on during working
        hours. Plaintiff had insisted that these accommodations fell short of
        her employer's obligation; however, an employer is not required by
        the ADA to provide a completely allergen-free environment.
vii.    EEOC v. United Air Lines, Inc., 185 F.3d 874 (10th Cir. 1999).
        Airline was not required to assign baggage handler with 20-pound
        lifting restriction to permanent ticket counter duty as reasonable
        accommodation. Even if plaintiff were assigned to ticket counter,
        she would still be required to lift and move bags; thus proposed
        accommodation would not be effective in enabling her to perform
        the essential functions of her job.
viii.   McGregor v. Nat'l Railroad Passenger Corp., 185 F.3d 868 (9th
        Cir. 1999). Railroad ticket agent with 20-pound lifting restriction
        was not entitled to use of forklift or other mechanical device to
        assist her in baggage-handling duties. Since plaintiff would have
        had to manually move heavy bags onto the machine even if
        provided with mechanical aids, proposed accommodation would
        not have been effective.
ix.     Buckles v. First Data Resources, Inc., 176 F.3d 1098 (8th Cir.
        1999). Credit card company reasonably accommodated analyst
        who suffered chemical sensitivity due to sinusitis. Plaintiff's
        employer created better-ventilated work-station, forbade
        employees in his department to use nail polish, and allowed him to
        sign off temporarily if irritated by chemicals. His employer was
        not required to provide a completely irritant-free work
        environment.
x.      Gonzales v. City of New Braunfels, 176 F.3d 834 (5th Cir. 1999).
        Insulin-dependent diabetic police officer who failed driving and
        firearms tests was not entitled to take retest as reasonable
        accommodation. Physician testified that plaintiff's condition
        rendered him unable to drive or use firearms safely, and requested
        accommodation of retesting would not alleviate the safety risk
        caused by the requirement that plaintiff drive a police car and use
        firearms.




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xi.     Kees v. Wallenstein, 161 F.3d 1196 (9th Cir. 1998). Correction
        officers who suffered from injuries that precluded them from direct
        contact with inmates were unable to show that assignment to
        control room would reasonably accommodate their disability.
        Plaintiffs did not establish that accommodation would be effective
        because control room duty necessitates incidental inmate contact
        even though it does not involve inmate contact on a routine basis.
xii.    Pavone v. Brown, 165 F.3d 32 (7th Cir. 1998). Janitor with cancer
        and post-traumatic stress disorder did not state claim of failure to
        accommodate based on employer's refusal to allow him longer
        breaks in order to obtain cancer treatments. Plaintiff presented no
        evidence that accommodation was necessary, as he was able to
        obtain all required treatments despite employer's failure to adjust
        his schedule. Furthermore, defendant did grant plaintiff's transfer
        request as an accommodation.
xiii.   Feliciano v. State of Rhode Island, 160 F.3d 780 (1st Cir. 1998).
        Institutional attendant with back injury who could not lift more
        than 30 pounds was not entitled to a power Hoyer lift as a
        reasonable accommodation. Plaintiff presented no evidence that
        she would be able to perform the essential functions of lifting and
        moving patients even if provided with such a lift. Moreover, a
        Hoyer lift could only be used by two people, and evidence showed
        that institutional attendants were frequently required to move
        patients alone.
xiv.    Smith v. Leis, 166 F.3d 1215 (6th Cir. 1998). Epileptic correction
        officer who could not control inmates was not entitled to be
        transferred to control room of jail as reasonable accommodation.
        Although inmate contact was not ordinarily required in the control
        room, such contact still occurred on an incidental basis, so plaintiff
        would not have been able to perform the essential functions of the
        position he desired.
xv.     Mustafa v. Clark County School Dist., 157 F.3d 1169 (9th Cir.
        1998). Issue of fact existed as to whether teacher with depression
        and anxiety was entitled to be transferred to a non-classroom
        position as a reasonable accommodation. Since plaintiff was
        claiming to be suffering from panic attacks, a non-classroom
        setting would have alleviated this condition to some degree, and he
        had also performed well in such a setting previously. Thus,
        plaintiff presented substantial evidence that proposed
        accommodation would have been effective in allowing him to
        perform his job.
xvi.    Lauby v. Swanson, 1997 U.S. App. LEXIS 23933 (6th Cir. 1997).
        Heavy equipment operator with back and spinal injury was not
        entitled to work part-time as a reasonable accommodation. Plaintiff
        presented no evidence that he would be able to fulfill the essential


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        function of his job, driving heavy off-road equipment, if allowed to
        work on a part-time basis.
xvii.   *Gonzagowski v. Widnall, 115 F.3d 744 (10th Cir. 1997). Air
        force was not required to provide additional training to computer
        programmer with anxiety disorder when he could no longer
        perform the essential functions of his job after the programming
        language changed, because the he did not establish how more
        extensive training in the new language would have accommodated
        his anxiety. The Rehabilitation Act does not grant relief to one who
        is incapable of doing a job even with additional training.
xviii. Jacques v. Clean-Up Group, Inc., 96 F.3d 506 (1st Cir. 1996). A
       jury could reasonably find that cleaning service did not fail to
       provide epileptic employee transportation to a job site because it
       was only one-half mile further than his usual commute to the
       employer's office that he already made without any
       accommodation.
xix.    *Marino v. U.S. Postal Serv., 25 F.3d 1037 (1st Cir. 1994). A
        postal worker with anxiety neurosis who punched his supervisor in
        the face and head several times after the supervisor had given him
        several direct orders which the worker had disobeyed was not
        otherwise qualified because no reasonable accommodation had
        been articulated which would permit him to perform the essential
        functions of the position. The postal worker had suggested being
        protected from stress-producing situations at work as a reasonable
        accommodation. The court rejected such an accommodation as
        unreasonable as a matter of law, citing the 6th Circuit decision in
        Pesterfield, infra.
xx.     McDaniel v. AlliedSignal, Inc., 896 F. Supp. 1482 (W.D. Mo.
        1995). Employer was not required to reasonably accommodate an
        alcoholic and depressed electrician who had lost his security
        clearance as a result of his conditions because the federal
        government makes security clearance decisions, and thus there is
        no accommodation that the employer could provide which would
        ensure that the plaintiff's security clearance was restored.
xxi.    Powell v. State of New York, 869 F. Supp. 106 (N.D.N.Y. 1994).
        Modification of the job retention rights of a substance abuse
        specialist with post-traumatic stress disorder and a knee condition,
        who obtained his position through a different hiring process to
        correspond with those of employees of another class, had nothing
        to do with accommodating the disability itself, but in reality, would
        give the plaintiff additional rights because of his disability instead
        of granting him equal rights in spite of his disability.
xxii.   *Hogarth v. Thornburgh, 833 F. Supp. 1077 (S.D.N.Y. 1993). FBI
        was not required to provide a communications officer suffering
        from a recurring manic-depressive disorder with monitoring or


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              limited access to confidential information as reasonable
              accommodations. Neither accommodation would allow plaintiff to
              perform his duties with the FBI. Monitoring would not resolve the
              security dangers of releasing confidential information during a
              possible relapse of his disorder, and limiting access to confidential
              information would mean a virtual duplication of plaintiff's position
              and a fundamental change in the job description, neither of which
              the Rehabilitation Act requires of an employer.
       xxiii. However, the accommodation does not have to ensure equal results
              or provide exactly the same benefits or privileges. For example:
              An employer provides an employee lunchroom with food and
              beverages on the second floor of a building that has no elevator. If
              it would be an undue hardship to install an elevator for an
              employee who uses a wheelchair, the employer must provide a
              comparable facility on the first floor. The facility does not have to
              be exactly the same as that on the second floor, but must provide
              food, beverages and space for the disabled employee to eat with
              co-workers. It would not be a reasonable accommodation merely to
              provide a place for this employee to eat by himself. Nor would it
              be a reasonable accommodation to provide a separate facility for
              the employee if access to the common facility could be provided
              without undue hardship. For example, if the lunchroom was only
              several steps up, a portable ramp could provide access. TAM, §
              3.4.

6. Need for an accommodation cannot enter into the employer's decision
regarding hiring, discharge, promotion, or other similar employment decisions,
unless the accommodation would impose an undue hardship on the employer. 42
U.S.C. § 12112(b)(5)(B); H. Lab. Rep. at 70; Appendix to 29 C.F.R. § 1630.9(b).

7. A qualified individual with a disability who refuses a necessary
accommodation is not protected by the Act if consequently s/he is unable to
perform the essential functions of the position held or desired. 29 C.F.R. §
630.9(d).

       i.     Burke v. Southern Iowa Methodist Med. Ctr., et al. 28 Fed. Appx.
              604 (8th Cir. 2002). Registered nurse who suffered from a major
              depressive disorder related to her HIV positive status did not
              demonstrate that defendant failed to engage in the interactive
              process or failed to offer her a reasonable accommodation which
              would allow her to return to work following a disability leave.
              After plaintiff’s long-term disability benefits were discontinued,
              plaintiff declined defendant’s offer to return to work. Defendant’s
              obligation to engage in the interactive process was not triggered
              because plaintiff did not request an accommodation or ask
              defendant to engage in the interactive process after declining the



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       offer of re-employment. The burden of requesting a part-time
       position or other accommodation rested with the plaintiff.
ii.    Connolly v. Entex Information Services, Inc., 27 Fed. Appx. 876
       (9th Cir. 2001). High-Tech employer properly accommodated
       Senior Customer Engineer with Attention Deficit Disorder,
       Attention Deficit Hyperactive Disorder, and a form of autism.
       When plaintiff had difficulty in meeting performance quotas the
       employer offered a medical leave of absence or a transfer to an
       easier position with equivalent salary and benefits. The employee
       interviewed for the easier position and was accepted, but rejected
       the position on the account that he found the work “monotonous,”
       and demanded a transfer to a different position, usually reserved
       for the most-skilled engineers. The Rehabilitation Act does not
       require employers to grant the job of an employee’s choice, but to
       identify an accommodation that allows the employee to perform
       the job effectively.
iii.   Schmidt v. Methodist Hosp. of Ind., Inc., 89 F.3d 342 (7th Cir.
       1996). Hospital was not required to transfer nurse-trainee with
       hearing impairment and who was having difficulties in his training
       because it had offered him the reasonable accommodations of
       additional training or resignation and re-application to a different
       unit in the hospital, both of which he refused. His failure to accept
       these accommodations rendered him unqualified under the Act.
iv.    Kuehl v. Wal-Mart Stores, Inc., 909 F. Supp. 794 (D. Colo. 1995).
       Department store door greeter with chronic tibia tendinitis was not
       a qualified individual with a disability because her condition
       prevented her from working a full shift as a door greeter and she
       refused to work a split shift or work as a cashier in the tire
       department, two reasonable accommodations which had been
       offered by her employer.
v.     Pattison v. Meijer, Inc., 897 F. Supp. 1002 (W.D. Mich. 1995).
       Stock clerk with seizure disorder was not protected under the ADA
       because he did not accept a reasonable accommodation that his
       employer offered him as an alternative to his request for the
       unavailable accommodation of being transferred from the night
       shift to the day shift.
vi.    An individual with a visual impairment that restricts her field of
       vision but who is able to read would not be required to accept a
       reader as an accommodation. However, if this person could not
       read accurately unaided, and reading is an essential function of the
       job, she would not be qualified for the job if she refused an
       accommodation that would enable her to read accurately.




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8. Accommodations and daily activity. Employers are not required to provide
adjustments or accommodations which assist an individual with a disability
throughout his or her daily activities, on and off the job, e.g., prosthetic limb,
wheelchair, or eyeglasses. Appendix to 29 C.F.R. § 1630.9.
       i.      Employers are not required to provide an individual with a
               disability any amenity or convenience that is not job-related, such
               as a private hot plate, hot pot, or refrigerator that is not provided to
               employees without disabilities. Appendix to 29 C.F.R. § 1630.9.
       ii.     However, the employer might be required to provide a person who
               has a visual impairment with glasses that are specially needed to
               use a computer monitor. Or, if deep pile carpeting in a work area
               makes it impossible for an individual to use a manual wheelchair,
               the employer may need to replace the carpet, place a usable surface
               over the carpet in areas used by the employee, or provide a
               motorized wheelchair. Appendix to 29 C.F.R. § 1630.9.
       iii.    CONCERN: The regulations do not state whether an employer
               would be required to provide an employee with a disability with a
               personal assistant to assist daily activities that are done on the job,
               such as eating lunch or using the bathroom.
       iv.     Hill v. Kansas City Area Trans. Auth., 181 F.3d 891 (8th Cir.
               1999). Public transportation authority did not fail to accommodate
               bus driver with high blood pressure by failing to identify a
               combination of pain and hypertension medications that would not
               cause drowsiness. Plaintiff did not request accommodation until
               she had already been caught sleeping on the job on two occasions.
               Moreover, an employer is not required by the ADA to act as an
               employee's personal physician.
       v.      McCauley v. Winegarden, 60 F.3d 766 (11th Cir. 1995), cert.
               denied, 116 S.Ct. 1451 (1996). Employee with chemical
               hypersensitivity syndrome is not entitled to life support systems, a
               life-support bubble or medical aids as a reasonable accommodation
               because these are personal devices. In addition, a filtered
               environment, as a whole may be considered a personal device.
9. The fact that an employer accommodates certain employees does not bind it to
provide similar accommodation in all cases.

       i.      Evans v. Federal Express Corp., 133 F.3d 137 (1st Cir. 1998).
               Overnight delivery company was not required to allow freight
               handler with cocaine addiction to take a second leave of absence
               for drug rehabilitation even though it occasionally allowed
               multiple leaves to other employees. The fact that an employer does
               more than the law requires on one occasion does not bind that
               employer to do so on all occasions.
       ii.     Simmerman v. Hardee's Food Systems, Inc., 118 F.3d 1578 (3d
               Cir. 1998). Fast food manager who was unable to work nights or


                                  11
                   more than 40 hours per week due to clinical depression was not
                   entitled to elimination of night shifts and overtime as reasonable
                   accommodation, despite evidence that employer had provided this
                   accommodation to another employee. The fact that an employer
                   provides an accommodation to one employee does not bind that
                   employer to provide equal accommodation in all cases. Such a
                   requirement would discourage employers from treating employees
                   in a spirit that exceeds the requirements of Federal law.
            iii.   Willis v. Pacific Maritime Ass'n, 162 F.3d 568-69 (9th Cir. 1998).
                   Employer was not required to waive seniority system established
                   under a collective bargaining agreement for injured longshoremen
                   even though it had done so in the past for other similarly situated
                   employees. A collectively bargained seniority scheme is bona fide
                   if it is created for legitimate purposes rather than for purposes of
                   discrimination, and evidence that the seniority system is
                   occasionally waived does not indicate that it was created in order
                   to discriminate against the disabled.
            iv.    Smith v. Ameritech, 129 F.3d 857 (6th Cir. 1997). Insurance
                   company was not required to allow sales representative with
                   herniated disc to work at home, even though it had made this
                   accommodation for other employees. The fact that an employer
                   does more than the law requires for one employee does not bind it
                   to do so for all employees.

B. Who Is Entitled To Reasonable Accommodation

      1. Individual must be disabled for an employer to be required to provide
      accommodation.

            i.     Felix v. N.Y. City Transit Auth., 324 F.3d 102 (2nd Cir. 2003).
                   Transit Authority was not required to provide a workplace
                   accommodation to a subway worker for a mental condition that did
                   not flow directly from her disability. The employee, whose
                   insomnia limited her major life activity of sleeping, also suffered
                   from Post-Traumatic Stress Disorder ("PTSD") and requested a
                   position outside of the subway because she was "terrified of being
                   alone and closed in.” While her insomnia and fear are both mental
                   conditions that derived from the same traumatic incident, her
                   requested accommodation was for the lesser impairment and not
                   her disability. If the requested accommodation addressed a
                   limitation caused by her insomnia, it would have been covered by
                   the ADA. When it is not clear that a single, particular medical
                   condition is responsible for both the disability and the lesser
                   impairment, the plaintiff must show a causal connection between
                   the specific condition that impairs a major life activity and the
                   accommodation.


                                    12
ii.    Kaplan v. City of N. Las Vegas, 323 F.3d 1226 (9th Cir. 2003).
       City was not required to accommodate a peace officer that it may
       have regarded as disabled. The court reasoned that if such
       plaintiffs were entitled to reasonable accommodation, impaired
       employees would be better off under the statute if their employers
       treated them as disabled even if they were not. In fact, it would
       lead to a perverse and troubling result under a statute aimed at
       decreasing "stereotypic assumptions not truly indicative of the
       individual ability of [people with disabilities]." The court also
       stated that accommodating “regarded as” employees “would do
       nothing to encourage those employees to educate employers of
       their capabilities, and do nothing to encourage the employers to see
       their employees' talents clearly; instead, it would improvidently
       provide those employees a windfall if they perpetuated their
       employers' misperception of a disability.”
iii.   Ruhle v. Hous. Auth., 54 Fed. Appx. 61 (3rd Cir. 2002). Employer
       properly accommodated employee even though he had not
       established that he was regarded as disabled. Although the Circuit
       had not decided whether the ADA requires the accommodation of
       such employees, the employer had placed him in the position of
       full-time lobby monitor and later permitted him to take a laborer’s
       job.
iv.    Buskirk v. Apollo Metals, 307 F.3d 160 (3rd Cir. 2002). An
       employee who was regarded as disabled by his employer after an
       on-the-job back injury had no claim under the ADA because the
       employer reasonably accommodated his condition. Specifically,
       the employer assigned him to light duty, reduced his hours with
       leave for medical therapy, and reinstated him to a full-time job
       when his medical restrictions permitted. Thus, the plaintiff’s
       challenge under the ADA failed because the employer provided a
       reasonable accommodation, whether or not it was required to do
       so.
v.     Szmaj v. AT&T, 291 F.3d 955 (7th Cir. 2002) Employer had no
       duty to accommodate an employee suffering from congenital
       nystagmus by transferring him to a position that required less
       reading, because such a condition was not a disability under the
       ADA. Although the plaintiff’s condition precluded him from
       holding a job that required he spend more than 50-percent of his
       time reading, such a restriction did not rise to the level of a
       disability, because the ability to read all day long is not a major life
       activity. Further, although the plaintiff could not read at all
       without some discomfort, and the ability to read is a major life
       activity, discomfort is not synonymous with disability. His
       discomfort was clearly not excruciating, else he would not have
       worked for many years in positions that required he spend much of
       the workday reading.


                         13
2. Not otherwise qualified. An employer does not have to make an
accommodation for an individual who is not otherwise qualified for a position.
TAM, § 3.1.

       i.     Koshko v. GE, 2003 U.S. Dist. LEXIS 4823 (N.D. Ill. 2003).
              Employer was not required to accommodate employee diagnosed
              with intermittent explosive disorder, as he was not a qualified
              individual under the ADA. An employer does not have a duty to
              accommodate an employee's alleged disability when that disability
              creates or results in violence in the workplace.
       ii.    DeVito v. Chicago Park District, 270 F.3d 532 (7th Cir. 2001).
              Laborer who, due to a back injury, was placed on a light-duty
              position was not entitled to the reasonable accommodation of a
              full-time light-duty position, because he could not fulfill the
              essential function of working on a full-time basis. Although it is
              possible that the plaintiff could work full-time at a light-duty
              position, the fact that he had not worked full-time for 13 years at
              the time of the appeal hearing due to his disability, and based on
              the plaintiff’s own statement that he felt no better than when he
              was first injured, was enough evidence to find that the plaintiff was
              incapable of working full-time. The ADA provides relief only to
              persons who are capable, with or without an accommodation, to
              perform the essential functions of their job which, in the case of a
              full-time job, requires that they be capable of working full time.
       iii.   Crocker v. Runyon, 207 F.3d 314 (6th Cir. 2000). The Postal
              Service had no legal duty to provide an applicant who could not
              walk without the assistance of crutches with a reasonable
              accommodation. The applicant did not request an accommodation
              and his pre-employment physical indicated that no reasonable
              accommodation would enable plaintiff to perform the job duties.
       iv.    Palmer v. Circuit Ct. of Cook County, Ill., 117 F.3d 351 (7th Cir.
              1997). Social worker with major depression and delusional
              disorder was not entitled to accommodation because she threatened
              to kill a coworker and her supervisor, thus rendering herself
              unqualified. The duty to accommodate does not run to employees
              who threaten or commit violent acts, and it would be unreasonable
              to demand either that employer force its employees to tolerate a
              mentally disturbed coworker or that it station guards to prevent the
              employee from getting out of hand.
       v.     Baker v. Asarco, Inc., 1997 U.S. App. LEXIS 19948 (9th Cir.
              1997). Factory worker whose physician represented that he was
              totally and permanently unable to work was not entitled to
              reasonable accommodation. An employee may not argue that he is
              entitled to reasonable accommodation at the same time that he is
              unable to work at all.



                               14
       vi.     Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019 (7th Cir. 1997).
               Blind applicant for cashier/sales associate position who could not
               perform essential job functions of position sought, even with
               reasonable accommodation, was not "qualified" within the
               meaning of the ADA and could not prevail on disparate treatment
               or reasonable accommodation claim.
       vii.    Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir.
               1996). Sales representative with severe depression and psychotic
               episodes, who was terminated for his failure to return as scheduled
               from a short disability leave, was not a entitled to a reasonable
               accommodation because he could not introduce proper evidence
               that he could perform his job with any reasonable accommodation.
               His recounting of his doctor's statements that he could work part-
               time, rather than a direct statement from the doctor, was hearsay
               and was not competent evidence, and therefore he was not a
               qualified individual entitled to accommodation.
       viii.   CONCERN: The EEOC takes the position that the ADA still
               obligates an employer to provide reasonable accommodation to an
               individual with a disability, regardless of whether the individual
               takes medication, obtains medical treatment, or uses assistive
               devices. The EEOC does not require that the employee's refusal to
               take the medicine or undergo the medical treatment be reasonable.
               The EEOC recognizes, however, that if the individual cannot
               perform the essential functions of the job with or without
               reasonable accommodation or if he poses a direct threat, then he is
               not a qualified individual with a disability. EEOC Reas. Accom.
               Guidance, Question 37.

3. Employer unaware of need to accommodate. An employer would not be
expected to accommodate a disability if unaware of the need. Appendix to 29
C.F.R. § 1630.9. However, the employer is responsible for notifying job
applicants and employees of its obligation to provide accommodations for
otherwise qualified individuals with disabilities. TAM, § 3.6. (See III.H.9.d.vi.
below for cases holding employers not liable for failing to provide a reasonable
accommodation that was not requested. See also VIII.A.4. below for cases
holding that employers lack of knowledge of disability is a defense to a claim of
discrimination).

       a. Employer found not obligated if unaware of the need for
       accommodation.
       i.      Amadio v. Ford Motor Company, 238 F.3d 919 (7th Cir. 2001).
               Assembly line worker with blindness in one eye and Hepatitis B
               failed to establish that his employer regarded him as disabled
               because he failed to convince the court that he had informed the
               employer of his condition. Plaintiff failed to present evidence that
               he ever discussed the reasons for his medical leaves with the labor


                                15
       relations department or with his manager. The fact the manager
       knew of plaintiffs condition at the time of his termination, was
       insufficient, in itself, to show that the manager regarded plaintiff as
       substantially limited in the life activity of working.
ii.    Reed v. Lepage Bakeries, Inc., 244 F.3d 254 (1st Cir. 2001).
       Employer did not fail to provide line worker with bipolar disorder
       with the accommodation of walking away from stressful situations
       with co-workers and managers because she never informed the
       employer of her condition or requested the accommodation. The
       employer has no duty to divine the need for a special
       accommodation where the employee merely makes a mundane
       request for a change at the workplace. Moreover, even if the
       plaintiff had made her employer aware of her condition and had
       she subsequently been granted an accommodation permitting her to
       walk away not only from conflicts with co-workers but also from
       conflicts with supervisors, she was never prevented from invoking
       any such accommodation in the meeting where her insubordinate
       acts led to her termination. In fact, at the meeting that led to her
       termination, instead of walking away from the altercation with her
       supervisor she remained there and verbally abused and threatened
       him.
iii.   Crocker v. Runyon, 207 F.3d 314 (6th Cir. 2000). The Postal
       Service had no legal duty to provide an applicant who could not
       walk without the assistance of crutches with a reasonable
       accommodation. The applicant did not request an accommodation
       and his pre-employment physical indicated that no reasonable
       accommodation would enable plaintiff to perform the job duties.
iv.    Morgan v. City and County of San Francisco, 202 F.3d 278 (9th
       Cir. 1999). City did not violate the ADA by terminating clerical
       worker with schizo-affective disorder due to excessive absences
       when it did not know of her condition. An employer is not
       required to accommodate a condition of which it has no
       knowledge.
v.     Gammage v. West Jasper Board of Education, 179 F.3d 952 (5th
       Cir. 1999). School district's duty to accommodate was not
       triggered by physician's letter which stated that teacher with kidney
       failure was required to undergo dialysis but did not mention any
       work restrictions. An employer is not required to assume that an
       employee with a medical condition is in need of accommodation,
       but need only accommodate known work restrictions.
vi.    Seaman v. CSPH, Inc., 179 F.3d 297 (5th Cir. 1999). Bipolar store
       manager was not entitled to reasonable accommodation when he
       did not inform his employer of his disability or work restrictions
       until after taking unauthorized leave and being terminated for




                         16
        insubordination. An employer is not required to retroactively
        accommodate an unknown disability.
vii.    Lorubbio v. Ohio Dept. of Transportation, 181 F.3d 102 (6th Cir.
        1999). Transportation worker with spinal injuries was not entitled
        to remain at work location closer to her home rather than
        undergoing scheduled transfer. Evidence including memorandum
        authored by plaintiff showed that plaintiff objected to her transfer,
        but did so on grounds of convenience rather than as a request for
        accommodation.
viii.   Crandall v. Eastern Paralyzed Veterans Association, 146 F.3d 894
        (D.C. Cir. 1998). Bipolar law librarian's rudeness to coworkers and
        clients did not put employer on sufficient notice of his condition to
        trigger its duty to accommodate under the Rehabilitation Act. A
        layman cannot be expected to distinguish a psychological
        condition from ordinary rudeness, given the prevalence of rudeness
        without psychological disorder.
ix.     Hunt-Golliday v. Metro. Water Reclamation Dist. of Greater
        Chicago, 104 F.3d 1004 (7th Cir. 1997). City's water reclamation
        district was not required to accommodate fireman-oiler's alleged
        mental disability, because she did not give the employer enough
        basis to inquire whether she needed an accommodation. She
        initiated her return to work, and her doctors' letter gave no
        indication that she was mentally incapable of returning to her job
        or that she needed any accommodation.
x.      Van Stan v. Fancy Colours & Co., 125 F.3d 563 (7th Cir. 1997).
        Manufacturer was not liable for failure to accommodate warehouse
        manager with bipolar disorder. Although plaintiff had submitted a
        letter from a doctor requesting a reduced work schedule, the letter
        did not mention his condition or state that the doctor was a mental
        health professional, and it is unreasonable to infer from this letter
        alone that the plaintiff's supervisor knew of his condition.
xi.     **Office of the Senate Sergeant at Arms v. Office of the Senate
        Fair Empl. Practices, 95 F.3d 1102 (Fed. Cir. 1996). Police
        dispatcher who informed his supervisor of his alcoholism upon his
        receipt of a final notice of his violation of attendance rules, was not
        entitled to have his attendance record expunged of his absences
        related to his condition. The ADA does not require employers to
        accommodate an employee before it has knowledge of his
        disability. The employee's disclosure of his disability is thus a
        prerequisite to the employer's duty to make an accommodation,
        and its duty is therefore prospective from the time when it gained
        knowledge of the disability. Likewise, the fact that he informed his
        supervisor of his depression only after discipline was imposed, did
        not entitle him to any accommodation before that time.




                          17
      xii.   Taylor v. Principal Fin. Group, 93 F.3d 155 (5th Cir. 1996).
             Agency manager who told his supervisor that he had bipolar
             disorder, asked his supervisor to investigate the condition, and for
             a reduction in his objectives and a lessening of the pressure gave
             adequate notice of his disability, but did not give notice that he was
             limited by it and needed accommodation. In fact, when plaintiff's
             supervisor responded to the bipolar information by asking him if
             he was alright, the plaintiff answered yes. Therefore, the employer
             had no knowledge that plaintiff was in any way limited by his
             disability.

      b. Employer found obligated if made aware of need for accommodation
      by other employees.
      i.     Schmidt v. Safeway, Inc., 864 F. Supp. 991 (D. Ore. 1994).
             Employer must accommodate an alcoholic truck driver, even
             though the request for accommodation resulted from the
             employer's medical review officer's recommendation that a leave
             of absence be granted. The fact that the medical officer did not
             have the employee's authorization is irrelevant because the
             accommodation request does not have to come only from the
             employee or his authorized representative. The real issue is
             whether the employer had reason to believe the employee could
             continue to perform the job if the accommodation is made, and the
             employer here got that information from its own medical officer.
      ii.    CONCERN: The EEOC takes the position that persons other than
             the disabled individual may make requests for accommodation on
             the individual's behalf and that doing so places the employer on
             notice of the need for an accommodation. The agency does not
             limit such requests by others to cases where the disabled individual
             has a communication problem. EEOC Reas. Accom. Guidance,
             Question 2.
      iii.   CONCERN: The EEOC asserts that an individual need not make a
             request for an accommodation in writing nor even mention the
             ADA. The individual or his or her representative may simply
             request an adjustment or change at work for a reason related to a
             medical condition. EEOC Reas. Accom. Guidance, Question 1.

4. Documentation of need. When the need for an accommodation is not obvious,
an employer may require the employee to provide documentation of the need.
Appendix to 29 C.F.R. § 1630.9.

      i.     CONCERN: The EEOC takes the position that an employer must
             accept medical certification provided by an employee, and cannot
             require an independent examination if the validity of the
             employee's medical certification is in doubt. Rather, the EEOC


                               18
                   contends that employers are limited to requesting further
                   information from the employee himself, and then only if the
                   information already provided is insufficient to make clear the need
                   for a particular accommodation. The EEOC contends that requiring
                   additional information beyond what is necessary to implement
                   accommodations or requiring independent medical certification
                   may be regarded as retaliation. EEOC Reas. Accom. Guidance,
                   Question 7, Footnote 30. The EEOC, however, does not provide
                   any guidance for employers who have a basis to believe (prior
                   experience) that the credibility of the medical certification the
                   individual submits is questionable.
            ii.    Vawser v. Fred Meyer, Inc., 19 Fed. Appx. 722 (9th Cir. 2001).
                   Employer did not fail to provide a reasonable accommodation
                   when it requested more information from HIV-positive employee’s
                   physician about how best to restructure the employee’s work week.
                   The plaintiff’s doctor had suggested the employee be granted a
                   modified schedule, but when the employer sought clarification
                   from the doctor on his recommendation, the doctor treated the
                   request as a rejection of accommodation and took the plaintiff off
                   of work entirely. When the duty to accommodate arises, both the
                   employee and the employer must communicate, exchange essential
                   information and not delay or obstruct the process. The employer
                   had previously granted the plaintiff’s requests for sick leave, and in
                   this instance it did not reject any accommodation.
            iii.   Butler v. Wal-Mart Stores, Inc., 202 F.3d 281 (10th Cir. 1999).
                   Department store was not required to provide stool to greeter with
                   knee and back injuries when she did not present current medical
                   certification of her work limitations. Two-year-old physician’s
                   letter presented by plaintiff to her employer was not enough to
                   place it on notice that she had current work restrictions.

     5. Investigation into need. If an employee with a known disability is not
     performing well or is having difficulty in performing a job, the employer should
     assess whether this is due to a disability. The employer may inquire at any time
     whether the employee needs an accommodation. TAM, § 3.6.

C. Types Of Accommodation

     1. The three categories of accommodations are:

            a. Accommodations that are required to ensure equal opportunity in the
            application process, e.g., a person with a visual disability or a person who
            lacks manual dexterity may need assistance in filling out an application
            form. TAM, § 3.3;




                                     19
       b. Accommodations that enable employees with disabilities to perform
       the essential functions of the position held or desired;

       c. Accommodations that enable employees with disabilities to enjoy
       benefits and privileges of employment equal to those enjoyed by
       employees without disabilities. Appendix to 29 C.F.R. § 1630.9;

       d. The obligation to make reasonable accommodation applies to all
       services and programs provided in connection with employment, (e.g.,
       placement or counseling services) and to all non-work facilities provided
       and maintained by an employer for use by its employees (e.g., cafeterias,
       restrooms, lounges, gymnasiums, auditoriums, transportation and the like).
       Appendix to 29 C.F.R. § 1630.9.

2. List is not exhaustive. The list of possible accommodations provided by the
statute and the regulations is not meant to be exhaustive; rather, it is intended to
provide general guidance about the nature of the obligation. S. Rep. at 31;
Appendix to 29 C.F.R. § 1630.2(o).

       a. Examples of accommodation are making facilities accessible,
       restructuring a job, altering when or how an essential job function is
       performed, part-time or modified work schedules, obtaining or modifying
       equipment or devices, modifying examination, training materials or
       policies, reassignment to a vacant position. 29 C.F.R. 1630.2(ii).

       b. Other accommodations could include providing qualified readers or
       interpreters, permitting the use of accrued paid leave or providing
       additional unpaid leave for necessary treatment, making employer-
       provided transportation accessible, providing personal assistants such as a
       page turner or travel attendant, and providing reserved parking spaces. 29
       C.F.R. § 1630.2(o) and Appendix thereto.

3. Determination of appropriate reasonable accommodation must be based upon
the particular facts of the individual case and must take into consideration two
unique factors: the specific abilities and functional limitations of a particular
applicant or employee with a disability; and the specific functional requirements
of a particular job. S. Rep. at 31; Appendix to 29 C.F.R. § 1630.9.

       i.      Nawrot v. CPC Int'l, 277 F.3d 896 (N.D. Ill., 2003). Diabetic
               warehouse supervisor was entitled to a reasonable accommodation
               even though the requested accommodations were not necessarily
               related to his job functions, they were nonetheless reasonable.
               Analogous Rehabilitation Act cases demonstrate that the ADA
               requires accommodations whether or not he needs the
               accommodation for his essential job functions. No matter what his


                                 20
       job duties, he will always need, he will need to check his blood
       sugar levels and administer insulin several times a day. To hold
       that a person with potentially life threatening diabetes is not
       entitled to accommodations so that he may monitor his blood sugar
       levels would force diabetics to choose between working while
       risking physical harm and death, or unemployment. The ADA was
       created to prohibit placing disabled persons in this position.
ii.    Miller v. Santa Clara County Library, 24 Fed. Appx. 762 (9th Cir.
       2001). Library employee suffering from Down’s Syndrome was
       not qualified for his position and, therefore, the employer did not
       violate the ADA by terminating him after only four days of work
       on two occasions. The record is clear that he could not perform
       without a job coach at his elbow and that he did not have the basic,
       rudimentary knowledge required for library work. "Reasonable
       accommodation" does not encompass within its meaning the use of
       an additional person to help the clearly unqualified who cannot
       perform on their own.
iii.   EEOC v. Hertz Corp., 7 A.D. Cases 1097 (E.D. Mich. 1998). Car
       rental company was entitled to discharge mentally retarded
       employees when job coaches who accompanied and supervised
       employees were incompetent and engaged in lovemaking on
       company time. An employer who consents to the employment of a
       disabled individual with a job coach is not obligated to continue
       that arrangement in perpetuity without regard to subsequent events
       that render that arrangement untenable.
iv.    *Huber v. Howard County, Md., 849 F. Supp. 407 (D. Md. 1994),
       aff'd 56 F.3d 61 (4th Cir. 1995), cert. denied, 116 S.Ct. 306 (1995).
       Asthmatic firefighter was not entitled to carry an inhaler as a
       reasonable accommodation under the Rehabilitation Act because it
       contained flammable materials and could burst at high
       temperatures, and because the employer was legitimately
       concerned about how the plaintiff would use the inhaler at the
       scene of a fire when he would be wearing a mask, gloves, a helmet
       and a breathing apparatus. In addition, although there are non-
       flammable inhalers, plaintiff failed to show that these inhalers
       would effectively control his asthma.
v.     If it is an essential function of a job to press a foot pedal a certain
       number of times a minute and an individual with a disability
       applying for the job has some limitation that makes this difficult or
       impossible, the accommodation process should focus on ways that
       this person might be able to do the job function, not on the nature
       of her disability or on how persons with this kind of disability
       generally might be able to perform the job. TAM, § 3.6.




                         21
4. The acquisition or modification of equipment or devices can be a simple and
inexpensive accommodation. S. Rep. at 32.

       i.     Skerski v. Time Warner Cable Co., 257 F.3d 273 (3rd Cir. 2001).
              Issue of fact existed as to whether company did not offer cable
              technician, who suffered from height-induced anxiety and panic
              attacks, a reasonable accommodation. Employee claimed that
              employer had a truck bucket, which would allow him to do the
              work above ground. Employer originally claimed that no such
              bucket was available, and also pointed to employee’s doctor’s note
              that said that employee would be unable to work above ground
              even with a truck bucket.
       ii.    Selenke v Medical Imaging of Colorado. 248 F.3d 1249 (10th Cir.
              2001). Discharged radiologist fails on claim of unreasonable delay
              of reasonable accommodation when the company made temporary
              alternate accommodations until the requested accommodation
              could be implemented. A delay of a few months in making
              requested ventilation accommodations for an employee suffering
              from a sinus disability, was not an unreasonable delay considering
              that the employee was given extra breaks and leave time, and a
              company-provided ventilation mask. The company’s offer of a
              temporary alternative position also made a delay in providing
              reasonable accommodations acceptable.
       iii.   Selenke v Medical Imaging of Colorado. 248 F.3d 1249 (10th Cir.
              May 10, 2001). Discharged radiologist fails on claim of
              unreasonable delay of reasonable accommodation when the
              company made temporary alternate accommodations until the
              requested accommodation could be implemented. A delay of a
              few months in making requested ventilation accommodations for
              an employee suffering from a sinus disability, was not an
              unreasonable delay considering that the employee was given extra
              breaks and leave time, and a company-provided ventilation mask.
              The company’s offer of a temporary alternative position also made
              a delay in providing reasonable accommodations acceptable.
       iv.    Basith v. Cook County, 241 F.3d 919 (7th Cir. 2001). Pharmacy
              technician whose knee injury made him unable to perform the
              duties of delivery and stocking of medicine failed to create an issue
              of fact that a motorized wheelchair with a carrying basket was a
              reasonable accommodation that would allow him to perform these
              duties. Plaintiff provided no evidence to substantiate his claim,
              such as a report from his doctor, nor was there evidence that a
              motorized wheelchair had ever been used for that purpose at the
              pharmacy, or that it would allow plaintiff to surmount the various
              hurdles of the delivery function. Standing alone, plaintiff's
              allegation that he could perform the essential function of delivery
              with a wheelchair is not enough to create a material issue of fact.


                               22
             v.      Leine v. California Dept. of Rehabilitation, 205 F.3d 1351 (9th Cir.
                     1999). State did not fail to reasonably accommodate blind
                     employee when it took 19 months to provide her with the Braille
                     computer she requested. Delay in providing accommodation was
                     necessary due to search for quality equipment and solicitation of
                     bids, and employer provided plaintiff with readers and voice
                     software as an interim accommodation.
             vi.     *Jones v. Alabama Power Co., 1995 WL 33626 (N.D. Ala. 1995),
                     aff'd, 77 F.3d 498 (11th Cir. 1996). Extended use of a forklift by a
                     garage helper who suffered from a minor back strain for
                     performing heavy duties was not practical when assisting
                     mechanics in repairs and thus was not a reasonable
                     accommodation under 1973 Rehabilitation Act. Allowing the
                     plaintiff to use the forklift extensively would preclude other
                     workers from using the forklift during those times and would be
                     tantamount to a wholesale reassignment of both plaintiff's and
                     other workers' duties.
             vii.    Smith v. Kitterman, Inc., 897 F. Supp. 423 (W.D. Mo. 1995).
                     Employer's conclusory assertion that there was no reasonable
                     accommodation which would allow an employee with carpal
                     tunnel syndrome to perform the essential functions of her position
                     because her medical restrictions prevented her from using small
                     hand tools or tools requiring repetitive grasping or sustained strong
                     gripping was insufficient to grant its summary judgment motion
                     where the employee provided evidence of possible
                     accommodations, including using small tools with larger handles
                     and providing periodic breaks when performing tasks requiring
                     repetitive motions.
             viii.   Negus v. Abbott Critical Care, 1994 WL 721597 (N.D. Cal. 1994).
                     A laser scanner could not be required as a reasonable
                     accommodation to a narcoleptic worker solely on the basis of the
                     worker's self-serving statements that the scanner would allow him
                     to meet the company's production requirement, especially since the
                     plaintiff had never used such a tool.
             ix.     *Perez v. Philadelphia Housing Auth., 677 F. Supp. 357 (E.D. Pa.
                     1987), aff'd, 841 F.2d 1120 (3rd Cir. 1988). An employer failed to
                     provide reasonable accommodation to an injured employee by not
                     providing a wooden straight-back chair, use of elevator and
                     coverage for regular breaks.
             x.      See III.H.9.e.iv and IV.E.3.a. below for publications and telephone
                     numbers providing guidance on available reasonable
                     accommodations for specific disabilities.

D. Making Facilities Accessible And Usable



                                      23
1. Generally. The employer's obligation under Title I is to provide access for an
individual applicant to participate in the job application process, and for an
individual employee with a disability to perform the essential functions of his/her
job, including access to a building, to the work site, to needed equipment, and to
all facilities used by employees. TAM, § 3.10(1).

       i.      Taylor v. Woodbridge Corp., No. 4:01 CV 01-760 (E.D. Mo.
               2003). An employee who was fired because of frequent absences
               after certain chemicals in a manufacturing plant aggravated her
               asthma raised a material factual dispute about whether use of a
               respirator or transfer to another job would have been a reasonable
               accommodation for her disability. The plaintiff’s asthma
               substantially limited her ability to breathe, constituting a disability
               within the meaning of the ADA. In addition, the plaintiff offered
               undisputed evidence that various accommodations, such as the use
               of a respirator or transfer to a warehouse job would minimize her
               exposure to TDI, which would allow her to satisfy the essential
               function of regular attendance at her job. The employer could not
               rely on a “direct threat” defense because it failed to raise that
               affirmative defense in its answer to the employee’s complaint.
       ii.     Whitson v. Union Boiler Co., 47 Fed. Appx. 757 (6th Cir. 2002).
               An employer did not violate the ADA when it failed to
               accommodate a pipe fitter with a seizure disorder. The plaintiff
               refused a job because there was no place for him to tie his safety
               belt into a life line, and with his seizure disorder the risk of having
               a seizure and falling was too great. However, the plaintiff failed to
               show that other employers "accommodated" his seizure disorder by
               supplying a life line, admitting that he never told previous
               employers about his seizure disorder. Moreover, the provision of a
               safety tie-off or life line to those who work at elevation is not an
               accommodation given to those with seizure disorders, but rather a
               safety requirement applicable to all employees under occupational
               safety codes.
       iii.    Trepka v. Board of Education, 28 Fed. Appx. 455 (6th Cir. 2002).
               Teacher with permanent back and neck pain who was limited in
               her ability to climb stairs more than two or three times a day, did
               not establish that her employer failed to reasonably accommodate
               her disability under the ADA. The employer’s assignment of a
               parking spot that required plaintiff to climb stairs only once a day
               was a reasonable accommodation of her condition.
       iv.     *Kemer v. Johnson, 900 F. Supp. 677 (S.D.N.Y. 1995), aff'd, 101
               F.3d 683 (2d Cir. 1996). Applicant with depressive neurosis and
               schizotypal personality disorder was not entitled to help in
               completing a job application form as a reasonable accommodation
               under the Rehabilitation Act because his disability did not prevent
               him from completing the form.


                                 24
v.     Vande Zande v. State of Wisconsin Dep't of Admin., 44 F.3d 538
       (7th Cir. 1995). Employer's failure to provide access to kitchen
       sink in office for paraplegic program assistant was not a failure to
       accommodate under the ADA where the employee had access to a
       special bathroom sink. Wisconsin's housing division did not have a
       duty to expend even modest amounts of money to bring about
       absolute identity in working conditions between disabled and non-
       disabled workers. Duty of reasonable accommodation was satisfied
       when the employer did what was necessary to enable the disabled
       worker to work in reasonable comfort.
vi.    Employment offices and interview facilities should be accessible to
       people using wheelchairs and others with mobility impairments.
       Plans also should be in place for making job information accessible
       and for communicating with people who have visual or hearing
       impairments. TAM, § 3.10(1).

b. Under Title I, an employer is not required to make its existing facilities
accessible until a particular applicant or employee with a particular
disability needs an accommodation, and then the modifications should
meet that individual's work needs. TAM, § 3.10(1).

i.     The employer does not have to make changes to provide access in
       places or facilities that will not be used by that individual for
       employment-related activities or benefits. TAM, § 3.10(1).

i.     Examples of accommodations that may be needed to make
       facilities accessible and usable include ramps, reserving wide
       parking spaces, accessible restroom facilities and accessible "path
       of travel" to equipment and facilities used by an employee. TAM,
       § 3.10(1).

c. The ADA establishes different requirements for accessibility under
different sections of the Act. A private employer's obligation to make its
facilities accessible to its job applicants and employees under Title I of the
ADA differs from the obligation of a place of public accommodation to
provide access in existing facilities to its customers and clients, and from
the obligations of public accommodations and commercial facilities to
provide accessibility in renovated or newly constructed buildings under
Title III of the Act. TAM, § 3.10 (1).

i.     Title III of the ADA requires that places of public accommodation
       (such as banks, retail stores, theaters, hotels and restaurants) make
       their goods and services accessible generally, to all people with
       disabilities. TAM, § 3.10 (1).




                         25
             ii.    Under Title III, existing buildings and facilities of a public
                    accommodation must be made accessible by removing
                    architectural barriers or communications barriers that are structural
                    in nature, if this is "readily achievable." If this is not "readily
                    achievable," services must be provided to people with disabilities
                    in some alternative manner if this is "readily achievable." TAM, §
                    3.10(1).
             iii.   Private employers that occupy commercial facilities or operate
                    places of public accommodation must conform to more extensive
                    accessibility requirements under Title III when making alterations
                    to existing facilities or undertaking new construction. TAM, §
                    3.10(1).
             iv.    See Sections IV.E.3.a. and IV.E.15. below for toll-free numbers
                    that offer guidance in the compliance of Title III accessibility
                    requirements.
             v.     Title IV of the ADA requires that any alterations to, or new
                    construction of "commercial facilities," as well as places of public
                    accommodation, made after January 26, 1992, conform to the
                    "ADA Accessibility Guidelines" (incorporated in Department of
                    Justice Title III regulations). "Commercial facilities" are defined as
                    any nonresidential facility whose operations affect commerce,
                    including office buildings, factories and warehouses; therefore, the
                    facilities of most employers will be subject to this requirement.
                    TAM, § 3.10(1).

E. Job Restructuring

      1. Defined. Job restructuring is "modifying a job so that a person with a
      disability can perform the essential functions of the position. Barriers to
      performance may be removed by eliminating nonessential elements of the job, re-
      delegating or exchanging assignments, and redesigning procedures for task
      accomplishment." H. Lab. Rep. at 62; S. Rep. at 31.

             a. Restructuring meets the definition.
             i.     Parnahay v. United Parcel Services, Inc., 20 Fed. Appx. 53 (2nd
                    Cir. 2001). Package car driver who, as a result of severe head
                    injuries, could not perform his previous duties, failed to produce
                    evidence that the light duties offered as an accommodation
                    (customer service, sweeping trucks) could, by themselves, describe
                    permanent position. Because the plaintiff could not establish that
                    the temporary jobs to which he was assigned before his dismissal
                    were actual jobs, he could not meaningfully make a claim for part-
                    time status in these jobs as a reasonable accommodation.
             ii.    Corrigan v. Perry, 139 F.3d 888 (4th Cir. 1998). Employer who
                    restructured duties of industrial yard worker who could not lift


                                      26
       more than 25 pounds, push or pull heavy objects, work above his
       head or work with a forklift by informally assigning these duties to
       other employees reasonably accommodated him even though his
       job description still required him to do these things on paper. An
       employee's actual duties, rather than his job description, are
       relevant in considering whether a reasonable accommodation has
       been made by an employer.
iii.   Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278
       (11th Cir. 1997). Grocery store reasonably accommodated clerk
       with pelvic injuries that caused difficulties in standing for long
       periods. Employer offered plaintiff a 20-minute paid break without
       interruptions, shorter work shifts, the opportunity to take unpaid
       breaks of up to 60 minutes, the opportunity to take a leave of
       absence, and planned break time in order to aid her with health
       problems.
iv.    Henchey v. Town of North Greenbush, 831 F.Supp. 960 (N.d.N.Y.
       1993). Highway Department terminated a laborer with an
       aggravated back problem that restricted him to light-duty work.
       Highway Department's shifting of plaintiff's duties to other
       laborers over several years served as a basis for the court to find
       that defendant could continue to accommodate plaintiff.

b. Restructuring does not meet the definition.

i.     Rauen v. United States Tobacco Mfg. L.P., 319 F.3d 891 (7th Cir.
       2003). Disabled Software engineer’s request to work at home was
       not a reasonable accommodation. Specifically, she asked that she
       be allowed to work at home when she was not needed at the office,
       and that generally, she would determine when it was necessary for
       her to come to work. Further, she made clear that any sort of
       "partial home office" was out of the question, and that the only
       acceptable option to her was "a home office in its entirety."
       However, every description of her duties indicates that her job
       required teamwork, interaction, and coordination of the type that
       requires being in the work place. The plaintiff admitted that her
       primary job responsibilities involved monitoring contractors' work,
       answering contractors' questions as they arise, and ensuring that
       the contractors' work did not interfere with the manufacturing
       process. Thus, her situation did not present the exceptional case
       where a work-at-home accommodation would be reasonable. In
       addition, the plaintiff’s ability to perform the essential functions of
       the job without accommodation also weighed against the
       reasonableness of her accommodation.
ii.    Peters v. City of Mauston, 311 F.3d 835 (7th Cir. 2002). A city
       machine operator's request that another employee do the heaviest


                         27
       lifting to accommodate his shoulder problem or that he be allowed
       to "try and see" whether he could do the job was not a reasonable
       accommodation. Proposing that someone else perform the heaviest
       lifting that the job required is unreasonable because it requires
       another person to perform an essential function of the disabled
       individual’s job. In addition, allowing the employee to return to
       work to see if he can complete the job is the wrong test as to
       whether an accommodation is reasonable. Under the ADA, an
       employer is not obligated to allow an employee to try the job out in
       order to determine whether some yet-to-be tested requested
       accommodation may be needed.
iii.   Watson v. Lithonia Lighting, 304 F.3d 749 (7th Cir. 2002).
       Manufacturer that assigned temporary jobs to an assembly line
       worker who sustained repetitive motion injuries was not obligated
       to make the job permanent when she failed to recover. The ADA
       does not require an employer that sets aside a pool of positions for
       recovering employees to make those positions available
       indefinitely to an employee whose recovery has run its course
       without restoring that worker to her original healthy state. It is not
       reasonable to require an employer to create new jobs tailored to
       each employee's abilities. An employer might establish a pool of
       light-duty positions (or other subsets of the full tasks) suited to
       employees recovering from injuries. However, if an employer set
       aside certain positions indefinitely, other workers would not be
       able to use these light-duty positions and it would increase the
       frequency of repetitive-motion injuries in the workplace.
iv.    Jay v. Intermet Wagner, Inc., 233 F.3d 1014 (7th Cir.2000) Factory
       acted properly when it refused to grant millwright’s request to
       restructure his position and instead reassigned him to a new
       position, to accommodate his torn Achilles' tendon in his left ankle
       which prevented him from climbing. The factory based its denial
       on the fact that there was not enough millwright work for plaintiff
       to do at ground level. Even if the factory had employed two other
       millwrights who worked mainly at ground level, it was not
       required to shuffle job responsibilities amongst employees to
       create a position to accommodate plaintiff's disability. It is the
       employer's prerogative to choose a reasonable accommodation; an
       employer is not required to provide the particular accommodation
       that an employee requests
v.     Webb v. Clyde L. Choate Mental Health and Dev. Ctr., 230 F. 3d
       991 (7th Cir. Oct. 25, 2000) A state mental hospital did not violate
       the ADA when it refused to accommodate a psychologist with
       asthma, osteoporosis, and a weakened immune system, by
       insulating him from contact with violent and infectious patients,
       essential functions of the job. The hospital based its denial of the
       requested accommodations on the fact that the plaintiff's position


                         28
        required significant direct contact with violent patients. Given the
        extreme working environment created by the patients housed at the
        Center, the plaintiff’s request to restructure his position wholly
        undercut the essential functions of the job. In addition, many
        incoming patients had impaired communication skills, and
        therefore it was hard to tell whether they had infectious diseases.
vi.     Donahue v. Consolidated Rail Corporation, 224 F.3d 226 (3rd Cir.,
        2000) Former train conductor’s request that rail road company
        accommodate his ventricular tachycardia by requiring co-workers
        to watch him and, upon his unexpected loss of consciousness, to
        take over his duties was not reasonable. Such an arrangement was
        not an accommodation because it was not designed to help him
        perform an essential duty of the job. Rather, it was a request to be
        exempted from the essential duty. Thus, the plaintiff failed to meet
        his burden of demonstrating that this specific accommodation
        would have allowed him to perform the essential functions of the
        job.
vii.    Summerville v. Trans World Airlines, Inc., 219 F.3d 855 ( 8th Cir.,
        2000). Air line employee who had lifting restrictions was not
        entitled to reasonable accommodation of being allowed work
        during the shifts that required lifting bags and wheelchair
        passengers, and being exempted from such duties. Lifting was an
        essential function of the employees working on these special shifts
        regardless of the fact that other employees were regularly available
        to perform such duty. Due to its staffing problems, the employer
        had negotiated a provision in the collective bargaining agreement
        that prevents employees in limited-duty positions, such as the one
        held by the plaintiff, from working during the shifts that required
        lifting.
viii.   Martin v. State of Kansas, 190 F.3d 1120 (10th Cir. 1999). Prison
        policy of terminating correction officers who could not return to
        work after six months on light duty did not violate the ADA. An
        employer is not required to make a temporary light-duty position
        permanent as reasonable accommodation to a disabled employee.
        Moreover, this policy was not equivalent to a policy of refusing to
        return disabled employees to work until they were 100 percent
        healed, because it did not preclude the prison from offering other
        accommodations.
ix.     Seaman v. CSPH, Inc., 179 F.3d 297 (5th Cir. 1999). Employer
        reasonably accommodated bipolar store manager by allowing him
        two days off per week, transferring him to an assistant manager
        position and relieving him of the duty to wear a pager. Even
        assuming that plaintiff's employer was on sufficient notice of his
        condition to trigger its duty to accommodate, it provided more than
        sufficient accommodations to meet his medical restrictions. Thus,



                         29
              employer did not violate the ADA when it failed to grant plaintiff
              increased unexcused absences.
       x.     Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th Cir. 1998).
              Power plant operator who suffered breathing difficulties due to
              chemical bronchitis was reasonably accommodated by employer
              which scheduled her for straight day shifts, allowed her to leave
              when known allergens were present, tested work area to comply
              with air standards, permitted her to use a mask and breathing
              machine, scheduled maintenance for hours when she was not
              present, and tested work area for fungus, bacteria and mites.
       xi.    If a qualified employee with a disability is unable to perform some
              marginal tasks of his/her position, the employer could assign to the
              employee marginal tasks that s/he is capable of performing, and
              which are normally associated with another position. Another
              method of job restructuring would be to change when and/or how
              essential job functions are performed. For example, an employee
              who is unable to write could be allowed to computerize records
              which were customarily written. Appendix 29 C.F.R. § 1630.2(o).

2. Altering the essential functions. The ADA does not require "any modification,
adjustment, or change in a job description or policy that an employer can
demonstrate would fundamentally alter the essential functions of the job in
question." H. Lab. Rep. at 64; S. Rep. at 33; Appendix to 29 C.F.R. § 1630.2(o).

       a. Eliminating or reassigning heavy lifting not required.

       i.     Peters v. City of Mauston, 311 F.3d 835 (7th Cir. 2002). A city
              machine operator's request that another employee do the heaviest
              lifting to accommodate his shoulder problem or that he be allowed
              to "try and see" whether he could do the job was not a reasonable
              accommodation. Proposing that someone else perform the heaviest
              lifting that the job required is unreasonable because it requires
              another person to perform an essential function of the disabled
              individual’s job. In addition, allowing the employee to return to
              work to see if he can complete the job is the wrong test as to
              whether an accommodation is reasonable. Under the ADA, an
              employer is not obligated to allow an employee to try the job out in
              order to determine whether some yet-to-be tested requested
              accommodation may be needed.
       ii.    Basith v. Cook County, 241 F.3d 919 (7th Cir. March 6, 2001).
              County Hospital did not violate the ADA by failing to grant
              injured pharmacy technician’s request for elimination of the
              essential functions of delivery and stocking so that he could
              perform overtime work and work holidays. The hospital already
              had accommodated plaintiff’s disability by granting him leave of


                               30
        absence and even going beyond the requirements of the ADA by
        temporarily eliminating essential functions of delivery and
        stocking from plaintiff’s regular shift job. Hospital did not have to
        restructure plaintiff’s job any further so that he could work an
        overtime shift.
iii.    Bratten v. SSI Services, Inc., 185 F.3d 625 (6th Cir. 1999).
        Mechanic who suffered back, shoulder and arm injuries as result of
        on-the-job accident was not entitled to relief from heavy physical
        labor as reasonable accommodation. An employer is not required
        by the ADA to eliminate or reassign an essential job function.
iv.     McGregor v. Nat'l Railroad Passenger Corp., 185 F.3d 868 (9th
        Cir. 1999). Railroad ticket agent with 20-pound lifting restriction
        was not entitled to elimination of baggage- handling duties as
        reasonable accommodation. An employer is not required to
        eliminate essential job functions as a reasonable accommodation to
        a disabled employee.
v.      Johnson v. City of Midwest City, 166 F.3d 1221 (10th Cir. 1999).
        Crew chief with torn rotator cuff that prevented him from
        performing heavy or overhead lifting was not entitled to have his
        overhead lifting duties assigned to two other crew members. An
        employer is not required to eliminate or reassign an essential job
        function as a reasonable accommodation under the ADA.
vi.     Barnett v. U.S. Air, Inc., 157 F.3d 744 (9th Cir. 1998). Airline
        customer service agent with back injury was not entitled to be
        assigned exclusively to desk-work as reasonable accommodation.
        Cargo and warehouse duties were essential functions of plaintiff's
        position, and his employer was not required to eliminate them.
vii.    Moritz v. Frontier Airlines, Inc., 147 F.3d 784 (8th Cir. 1998).
        Airline station agent with multiple sclerosis was not entitled to
        elimination of passenger assistance duties, such as baggage
        carrying and assistance in boarding aircraft, as reasonable
        accommodation. An employer is not required to eliminate an
        essential job function as a reasonable accommodation to a disabled
        employee.
viii.   Ingerson v. Healthsouth Corp., 1998 U.S. App. LEXIS 3133 (10th
        Cir. 1998). Hospital was not required to reassign lifting duties to
        another staff member to reasonably accommodate registered nurse
        with back injuries. Lifting was an essential function of plaintiff's
        position, and employers are not required to eliminate an essential
        job function as reasonable accommodation to a disabled employee.
ix.     Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7th Cir. 1996).
        Mining company did not have to eliminate heavy lifting, overhead
        work, and pushing and pulling, as required by doctor's restrictions,
        to accommodate miner with work-related shoulder injury where



                         31
       essential function of the job was doing physical work, including
       sustained work over his head. The essential function of his job was
       physically working on the roof, and not just viewing the roof's
       contour for reinforcing the mine's ceiling as plaintiff argued.
x.     White v. York Int'l Corp., 45 F.3d 357 (10th Cir. 1995). A machine
       operator and unit assembler underwent arthrodesis, a surgical
       procedure by which his ankle was immobilized, making him
       unable to lift objects weighing more than fifteen pounds and to
       stand for longer than four hours. He was not entitled to job
       restructuring because eliminating the requirements of moving large
       pieces of sheet metal would fundamentally alter the nature of the
       position.
xi.    *Gilbert v. Frank, 949 F.2d 637 (2d Cir. 1991). An applicant who
       due to polycystic kidney disease could not lift more than 25 lbs.
       was not otherwise qualified for the position of Mail Distribution
       Clerk that required the ability to lift 70 lbs. The Postal Service was
       not required to change lifting requirements since the ability to lift
       70 lbs. was an essential function of the job.
xii.   *Jones v. Alabama Power Co., 1995 WL 33626 (N.D. Ala. 1995),
       aff'd, 77 F.3d 498 (11th Cir. 1996). Reassigning heavy lifting
       duties of a garage helper who suffered from minor back strain to
       other employees was not reasonable under 1973 Rehabilitation Act
       since such tasks constituted 40% of a helper's work week.
b. Hiring an assistant to help perform essential functions found not to be
required.
i.     Dropinski v. Douglas County, 298 F.3d 704 (8th Cir. 2002).
       Employer was not required to accommodate a disabled Automated
       Equipment Operator by reassigning existing workers to assist him
       in performing the essential duties. Operators did not always work
       as a member of teams and the plaintiff was unable to perform
       certain functions while out on a job alone due to work restrictions
       created by his bad back. In order to accommodate the disabled
       employee, the employer stated that it would have been unduly
       burdensome as well as a safety risk, to schedule the plaintiff on
       any assignment knowing that his medical limitations would not
       permit him to handle everyday unplanned occurrences.
ii.    Mays v. Prinicipi, 301 F.3d 866 (7th Cir. 2002). VA Hospital did
       not have to offer nurse with back problems a nursing position that
       she could only perform with another nurse, or an orderly, who
       would follow her around to help her lift patients. The
       Rehabilitation Act does not require employers to accommodate
       disabled individuals by hiring assistants to perform essential
       functions of the position.




                         32
iii.    Miller v. Santa Clara County Library, 24 Fed. Appx. 762 (9th Cir.
        2001). Library employee suffering from Down’s Syndrome was
        not qualified for his position and, therefore, the employer did not
        violate the ADA by terminating him after only four days of work
        on two occasions. The record is clear that he could not perform
        without a job coach at his elbow and that he did not have the basic,
        rudimentary knowledge required for library work. "Reasonable
        accommodation" does not encompass within its meaning the use of
        an additional person to help the clearly unqualified who cannot
        perform on their own.
iv.     Ozlowski v. Henderson, 237 F.3d 837 (7th Cir. 2001). Postal
        service did not have to provide postal worker with degenerative
        spinal disease with the accommodation of a helper to perform the
        essential functions of the job because this accommodation is not
        required by the Rehabilitation Act. Even if the Postal Service made
        an accommodation to a previous employee by assigning her a
        helper to essentially perform her job, the Postal Service was not
        required to do so for her and likewise was not required to do so for
        plaintiff.
v.      Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d 1212 (8th Cir.
        1999). Customer service coordinator with multiple sclerosis and
        depression was not entitled to a fully staffed department as
        reasonable accommodation. Employers are not required to hire
        additional employees as reasonable accommodation to relieve
        disabled workers of a portion of their workload.
vi.     EEOC v. United Air Lines, Inc., 185 F.3d 874 (10th Cir. 1999).
        Airline was not required to assign other employees to assist
        baggage handler with 20-pound lifting restriction in moving
        baggage. An employer is not required to eliminate or reassign
        essential job functions as reasonable accommodation.
vii.    Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8th Cir.
        1999). Restaurant was not required to accommodate injured
        manager who could not work more than three consecutive days by
        assigning a "co-manager" to share her duties. The ADA does not
        require an employer to create new positions or reassign essential
        functions as reasonable accommodation to a disabled employee.
viii.   McGregor v. Nat'l Railroad Passenger Corp., 185 F.3d 868 (9th
        Cir. 1999). Railroad ticket agent with 20-pound lifting restriction
        was not entitled to assistance in lifting bags from other employees.
        An employer is not required to reassign an essential job function as
        reasonable accommodation.
ix.     Robertson v. Neuromedical Center, 161 F.3d 292 (5th Cir. 1998).
        Anesthesiologist who suffered from attention deficit hyperactive
        disorder was not entitled to have his employer hire an assistant to
        perform his administrative duties. An employer is not required to


                         33
       accommodate a disabled employee by hiring an assistant to
       perform an essential job function.
x.     Martinson v. Kinney Shoe, 104 F.3d 683 (4th Cir. 1997). Shoe
       store was not required to hire an additional person to perform the
       essential function of store security as an accommodation to
       epileptic salesperson's inability to perform such duties due to the
       unpredictable nature of his seizures. The ADA does not require an
       employer to hire an additional person to perform an essential
       function of a disabled employee's position.

c. Elimination of other essential functions found not to be required.

i.     Alexander v. Northland Inn, 321 F.3d 723 (8th Cir. 2003). Hotel
       was not required to grant housekeeping supervisor’s request for
       accommodation in performing the essential function of vacuuming.
       The employee offered no explanation why she could no longer
       vacuum and made no timely request that the hotel reasonably
       accommodate her sudden inability to vacuum, a function she had
       performed without complaint for many months. When told she had
       been terminated for this reason, the employee asked the
       supervisors to relieve her of vacuuming duties while she worked
       with a physical therapist to learn how to vacuum without injuring
       her back and neck. However, this was not a reasonable
       accommodation because it would have required the hotel to assign
       her vacuuming responsibilities to other employees for an indefinite
       period. Alternatively, the employee asked to be transferred to a day
       housekeeping supervisor position. This was not a reasonable
       accommodation because vacuuming was an essential function for
       all housekeeping supervisors.
ii.    Rauen v. United States Tobacco Mfg. L.P., 319 F.3d 891 (7th Cir.
       2003). Disabled Software engineer’s request to work at home was
       not a reasonable accommodation. Specifically, she asked that she
       be allowed to work at home when she was not needed at the office,
       and that generally, she would determine when it was necessary for
       her to come to work. Further, she made clear that any sort of
       "partial home office" was out of the question, and that the only
       acceptable option to her was "a home office in its entirety."
       However, every description of her duties indicates that her job
       required teamwork, interaction, and coordination of the type that
       requires being in the work place. The plaintiff admitted that her
       primary job responsibilities involved monitoring contractors' work,
       answering contractors' questions as they arise, and ensuring that
       the contractors' work did not interfere with the manufacturing
       process. Thus, her situation did not present the exceptional case
       where a work-at-home accommodation would be reasonable. In
       addition, the plaintiff’s ability to perform the essential functions of


                         34
       the job without accommodation also weighed against the
       reasonableness of her accommodation.
iii.   Palotai v. University of Maryland at College Park, 38 Fed. Appx.
       946 (4th Cir. 2002). University did not have to accommodate
       agricultural technician by eliminating the time frames required by
       the job. The growth and survival of the plants were dependent
       upon a strict watering, venting and pesticide-spraying schedule. As
       a result, the ability to adhere to a strict schedule and time frame
       were essential functions of the position. Therefore, a reasonable
       means of accommodation did not exist given the plaintiff’s
       inability to meet time constraints due to his learning disability.
iv.    Dropinski v. Douglas County, 298 F.3d 704 (8th Cir. 2002). An
       employer was not required to restructure or eliminate the essential
       functions of a job to accommodate a disabled Automated
       Equipment Operator (AEO). The plaintiff was unable to perform
       all the essential functions of the job because of his inability to
       bend, twist, squat, and lift over fifty pounds. Although some of the
       job functions that were essential were not performed on a regular
       basis, each AEO was required to possess the physical strength and
       agility necessary to perform these functions and that any
       accommodation would result in job restructuring. While job
       restructuring is a possible accommodation under the ADA, an
       employer need not reallocate or eliminate the essential functions of
       a job to accommodate a disabled employee.
v.     Webb v. Clyde L. Choate Mental Health and Dev. Ctr., 230 F. 3d
       991 (7th Cir. 2000) A state mental hospital did not violate the
       ADA when it refused to accommodate a psychologist with asthma,
       osteoporosis, and a weakened immune system, by insulating him
       from contact with violent and infectious patients, essential
       functions of the job. The hospital based its denial of the requested
       accommodations on the fact that the plaintiff's position required
       significant direct contact with violent patients. Given the extreme
       working environment created by the patients housed at the Center,
       the plaintiff’s request to restructure his position wholly undercut
       the essential functions of the job. In addition, many incoming
       patients had impaired communication skills, and therefore it was
       hard to tell whether they had infectious diseases.
vi.    Emerson v Northern States Power Co., 256 F.3d 506 (7th Cir.
       2001). ADA does not require employer to reroute safety-sensitive
       calls to another employee as an accommodation to an employee
       stricken with frequent anxiety and panic attacks that made her
       unable to handle such calls. An employer is not required to
       reassign or eliminate essential functions of the job.
vii.   Wilson v. County of Bernalillo, 211 F.3d 1279 (10th Cir. 2000). A
       juvenile detention center did not have to accommodate a training


                        35
        manager by restructuring the duties of the position and eliminating
        the requirement that he interact with inmates. The ADA does not
        require an employer to create a new position or modify an essential
        function of an existing position to accommodate a disabled worker.
viii.   Lloyd v. Hardin County, Iowa, 207 F.3d 1080, (8th Cir. 2000) A
        road maintenance worker whose spinal chord injury restricted him
        from performing the essential functions of summer tilling work
        and winter ditch cleaning was not a qualified individual with a
        disability. The written job description requirements, which were
        provided to plaintiff at the time of his hire, listed these duties as
        essential functions of the position. The ADA does not require that
        the county road department restructure a position for the plaintiff
        by reallocating one or more of the positions essential functions.
        The fact that plaintiff’s supervisor may have offered him the
        restructured position during the interactive process is irrelevant.
ix.     Lusby v. Metropolitan Washington Airports Authority, 187 F.3d
        630 (4th Cir. 1999). Firefighter who was unable to respond to
        emergency fire calls due to severe coronary artery disease was not
        entitled to be relieved of emergency response duties as reasonable
        accommodation. An employer is not required to eliminate an
        essential job function as reasonable accommodation to a disabled
        employee.
x.      Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723 (8th Cir. 1999).
        Depressed teller was not entitled to elimination of all stressful
        contact with co-workers as reasonable accommodation. Employers
        are not required to provide depressed employees with an
        “aggravation-free” work environment.
xi.     Anderson v. Coors Brewing Co., 181 F.3d 1171 (10th Cir. 1999).
        Temporary production operator with multiple sclerosis was not
        entitled to stool, camelback water pack, and permanent assignment
        to     can-sorting    line   as     reasonable    accommodations.
        Accommodations requested by plaintiff would transform job
        involving multiple tasks into single-task position, and would thus
        involve elimination of essential functions.
xii.    Burch v. City of Nacogdoches, 174 F.3d 615 (5th Cir. 1999).
        Firefighter with back injury was not entitled to elimination of
        firefighting duties and assignment solely to driving as reasonable
        accommodation. An employer is not required to eliminate or
        reassign an essential job function.
xiii.   Masterson v. Yellow Freight System, Inc., 166 F.3d 347 (10th Cir.
        1998). Truck driver with amputated left arm conceded that on
        occasions his job required him to drive non-power steering trucks.
        Thus, the ability to drive a non-power steering truck was an
        essential function of the job that the ADA does not require
        employers to eliminate as a reasonable accommodation.


                         36
xiv.    Jones v. Kerrville State Hospital, 142 F.3d 263 (5th Cir. 1998).
        Licensed vocational nurse who was unable to engage in physical
        combat due to arthritis and degenerative joint disease was not
        entitled to be exempted from completing physical portion of
        training in dealing with aggressive mental patients. Dealing with
        aggressive mental patients was an essential function of plaintiff's
        job, and an employer is not required to eliminate an essential job
        function as reasonable accommodation under the ADA.
xv.     Miller v. Department of Corrections, State of Ill., 107 F.3d 483
        (7th Cir. 1997). Correctional officer who became blind as a result
        of a car accident was not entitled to be permanently assigned to the
        armory or the switchboard as a reasonable accommodation because
        the employer established that an essential function of the
        correctional officer position is the ability to perform a variety of
        tasks, most of which involve the supervision and surveillance of
        inmates. Plaintiff is not entitled to the accommodation because it
        would amount to the elimination of an essential function, which is
        not required by the ADA.
xvi.    Foreman v. Babcock & Wilcox Co., 113 F.3d 1402 (5th Cir. 1997).
        Factory was not required to restructure the expeditor position by
        eliminating the essential function of carrying materials into the
        shop areas in order to accommodate an expeditor who could not
        work there due to potential electromagnetic interference with his
        pacemaker because the ADA does not require employers to
        eliminate essential functions of the job as a reasonable
        accommodation.
xvii.   Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997).
        Police department was not required to accommodate a detective
        with blindness in one eye and only partial vision in the other by
        assigning him cases that only involved evidence he could handle or
        by having other detectives drive him to crime scenes. Although the
        crimes involving the evidence that the detective could not collect
        were historically rare in the city, the simultaneous occurrence of
        such crimes would require the department to reallocate an essential
        part of the detective's job, which it is not required to do under the
        ADA.
xviii. Jacques v. Clean-Up Group, Inc., 96 F.3d 506 (1st Cir. 1996). A
       jury could reasonably find that accommodating epileptic cleaner by
       allowing him to start work two hours after the necessary start time,
       by splitting his shift with another employee, or by reassignment to
       another crew would be unreasonable, as it would eliminate the
       job's essential function of arriving at 8:00 a.m.
xix.    Wernick v. Federal Reserve Bank, 91 F.3d 379 (2d Cir. 1996).
        Manager with back injury could not establish discrimination due to
        the bank's refusal to transfer her to a position free from the stress


                         37
        of working under her supervisor. The bank had already reasonably
        accommodated her by providing her with ergonomic furniture and
        allowing her frequent breaks to stretch. The bank was not required
        to eliminate the essential function of working under her assigned
        supervisor.
xx.     Simmerman v. Hardee's Food Systems, Inc., 118 F.3d 1578 (3d
        Cir. 1998). Fast food manager who was unable to work nights or
        more than 40 hours per week due to clinical depression was not
        entitled to elimination of night shifts and overtime as reasonable
        accommodation. An employer is not required to eliminate an
        essential function of a job as reasonable accommodation to a
        disabled employee.
xxi.    Milton v. Scrivener, Inc., 53 F.3d 1118 (10th Cir. 1995). Grocery
        order selectors who could not keep up with new, faster production
        standards because of their disability were not entitled to work
        slower as a reasonable accommodation. Speed is an essential
        function of the order selector job, and thus allowing the selectors to
        work slower would fundamentally alter one of the essential
        functions of their job.
xxii.   Wann v. American Airlines, Inc., 878 F. Supp. 82 (S.D. Tex.
        1994), aff'd, 58 F.3d 636 (5th Cir. 1995). Airline was not required
        to eliminate one or more of the essential functions of a fleet service
        clerk to accommodate an applicant who had a hoarse voice,
        paralyzed vocal cords, breathing difficulties, sprained ankle and
        other foot problems.
xxiii. Carrozza v. Howard County, Md., 847 F. Supp. 365 (D.Md. 1994),
       aff'd, 45 F.3d 425 (4th Cir. 1995). A clerk/typist with a bipolar
       mental disorder was not entitled to the accommodations she
       requested because such accommodations would have
       fundamentally restructured her job's requirements, one of which
       the court found was to cope with the inherent stresses of the job.
       The requested accommodations included reassignment to a vacant
       job away from her supervisor whom she alleged was excessively
       demanding, modification to job training programs and materials,
       and elimination of a job evaluation program which she found
       "demanding and intolerable."
xxiv. *Buko v. American Medical Lab., Inc., 830 F. Supp. 899 (E.D. Va.
      1993), aff'd, 28 F.3d 1208 (4th Cir. 1994). A blood testing lab did
      not have to accommodate a lab testing supervisor, who due to her
      chronic arthritis could no longer dispense blood or chemicals into
      the test tubes, by eliminating her testing duties which were
      essential functions of the position.
xxv.    Inspection of identification cards is generally an essential function
        of the job of a security guard. If a person with a visual impairment
        could not verify the identification of an individual using the photo


                          38
       and other information on the card, the employer would not be
       required to transfer this function to another employee. Appendix
       29 C.F.R. § 1630.2(o).
xxvi. Crocker v. Runyon, 207 F.3d 314, (6th Cir. 2000)An applicant for
      a postal letter carrier position who was unable to walk without the
      assistance of crutches due to his Reflex Sympathetic Dystrophy
      failed to show that he was a qualified individual with a disability.
      Plaintiff’s pre-employment physical results indicated he could not
      perform the essential functions of the job. Two years later,
      plaintiff received medical documentation supporting his ability to
      do the job. These examinations, however, could not prove that he
      was physically capable of performing the job at the time he was
      not hired due to the length of time between the time of possible
      hire and second physicals.

d. Although the EEOC takes the position that employers must modify
workplace policies as a reasonable accommodation for disabled
employees, the agency recognizes that the ADA does not require an
employer to eliminate the essential functions of a position. EEOC Reas.
Accom. Guidance, Question 24 and General Principles. This position
creates the question of whether, in the EEOC's point of view, an employer
will now have to accommodate a secretary with bipolar disorder by
modifying job training programs and materials and eliminating a job
evaluation program that she found "demanding and intolerable." See
Carrozza v. Howard County, Md., 847 F. Supp. 365 (D.Md. 1994), aff'd,
45 F.3d 425 (4th Cir. 1995), where court held employer did not have to
make accommodations.

e. Restructuring does not automatically eliminate essential job function.

i.     Basith v. Cook County, 241 F.3d 919 (7th Cir. 2001). Fact that
       employer had accommodated pharmacy technician who, as a result
       of his knee injury could not perform the essential function of
       delivery, by creating a temporary position for him which did not
       require performance of this duty, only showed the job could be
       restructured, not that the duty of delivery was non-essential.
       Absent other evidence that the duty of delivery was non-essential,
       the special assignment alone was not proof of this fact because it
       would punish the employer for going beyond the ADA's
       requirements. The fact that restructuring is feasible, in itself, is not
       persuasive evidence one way or the other that a function is
       essential to a job.
ii.    Hoskins v. Oakland County Sheriff's Department, 227 F.3d 719 (
       6th Cir., 2000) Sheriff’s department did not have to accommodate a
       disabled deputy sheriff by requiring other deputies to take over her


                         39
                    job’s essential function of restraining inmates. The ADA does not
                    require employers to accommodate individuals by shifting an
                    essential job function onto others.

             f. Employer may restrict job duties to only some essential functions (in
             the ninth circuit)

             i.     Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir.
                    2001). Deaf applicant for driver position created an issue of fact
                    that UPS had failed to provide her with a reasonable
                    accommodation for her disability. Although DOT regulations
                    precluded the plaintiff from operating vehicles weighing over
                    10,000 pounds, the company could have accommodated her by
                    restricting her duties to “swing” driver work of vehicles weighing
                    less than 10,000 pounds.
      3. Marginal functions. An employer cannot reduce pay to an employee with a
      disability because of the elimination of a marginal job function or because it has
      provided a reasonable accommodation, such as specialized or modified
      equipment. The employer can give the employee with a disability other marginal
      functions that s/he can perform. TAM, § 7.8.

F. Part-Time Or Modified Work Schedule

      1. Generally. Modified work schedules can be a "no-cost way" to accommodate
      the following: persons who need medical treatment (flexible or adjusted
      schedules), persons with epilepsy (constant shifts rather than rotations), and
      persons with mobility impairments requiring public transportation. S. Rep. at 31.

             a. Examples

             i.     Nawrot v. CPC Int'l, 277 F.3d 896 (N.D. Ill., 2003). A diabetic
                    warehouse supervisor raised an issue of fact that a consumer foods
                    manufacturer and distributor failed to accommodate his disability
                    by not granting his requests to take breaks allowing him to monitor
                    and maintain his blood sugar level. Because his requests for breaks
                    were refused, the employee suffered hypoglycemic attacks at work
                    causing collapse and altering his capacity to think clearly and act
                    appropriately. The employer argued that all failure to
                    accommodate claims require an adverse employment action, but it
                    could not escape liability under the ADA just because its failure to
                    accommodate did not result in an adverse employment action.
             ii.    MacGovern v. Hamilton Sunstrand Corp., 50 Fed. Appx. 59 (2nd
                    Cir. 2002). Employer reasonably accommodated employee who
                    claimed that mandatory overtime negatively affected his condition
                    of major recurrent depression and seasonal affective disorder by


                                      40
       not allowing him to work any overtime, mandatory or voluntary,
       for six months. Although the plaintiff had been diagnosed with
       depression six years prior to his complaint about the overtime, he
       only made the employer aware of its existence when he was
       required to work overtime during a weekend. In addition, even
       after the employer restricted him from working any overtime, the
       plaintiff did not object at any time about the accommodation the
       employer chose.
iii.   An employee who needs kidney dialysis treatment is unable to
       work on two days because his treatment is only available during
       work hours on weekdays. Depending on the nature of his work and
       the nature of the employer's operation, it may be possible, without
       causing an undue hardship, for him to work Saturday and Sunday
       in place of the two weekdays, to perform work assignments at
       home on the weekend, or to work three days a week as a part- time
       employee. TAM, § 3.10(3).
iv.    A machinist has diabetes and must follow a strict schedule to keep
       blood sugar levels stable. She must eat on a regular schedule and
       take insulin at set times each day. This means that she cannot work
       the normal shift rotations for machinists. As an accommodation,
       she is assigned to one shift on a permanent basis. TAM, § 3.10(3).
v.     Breen v. Department Of Transportation, 282 F.3d 839 (D.C.
       Circuit, 2002). File clerk who suffered from obsessive-compulsive
       disorder raised a genuine issue of material fact as to whether an
       accommodation in the form of an alternative work schedule, which
       had been recommended by her doctor, would have allowed her to
       perform the essential functions of her job. The alternative work
       schedule would have consisted of an additional daily hour of work,
       four days a week, and a biweekly day off to balance the extra hour
       on other days. Plaintiff claimed that the additional hour would
       have permitted her “quiet time” after business hours to complete
       her tasks without interruptions and thus meet her employer’s
       expectations. Employer denied this alternative schedule based on
       its argument that plaintiff’s services were needed in the office
       every day. However, plaintiff demonstrated that daily deadlines
       did not prove to be a critical element of her position and showed
       that employer had granted such alternative schedules to other
       employees.
vi.    Barbara Black, v. Wayne Center, 225 F.3d 658 (6th Cir., 2000)
       Social services agency was not required to permit social worker
       with MS to work at home as reasonable accommodation. Plaintiffs
       doctor stated that 3-5 hours of work per week at home could help
       manage the stress and exacerbations associated with MS.
       However, plaintiff never had a problem performing her paperwork
       obligations at the office nor had she encountered any criticism
       from her employer in carrying out these duties. Where plaintiff is


                        41
       able to perform the job without accommodation, plaintiff cannot
       demonstrate the objective reasonableness of any desired
       accommodation.

b. Full-time or part-time work at home found not to be required as an
accommodation.

i.     Cruz v. Perry, 2003 WL 1719995 (N.D. Ill. 2003). Contract
       specialist who suffered from intermittent, unpredictable migraine
       headaches failed to establish that the General Services
       Administration (GSA) did not reasonably accommodate her
       condition by refusing to allow her to work from home three days a
       week. The plaintiff claimed that the stress of commuting to work,
       caring for her children, and her "debilitating migraines" made her
       less than fully efficient when she was required to work from the
       GSA office and made three separate requests to be considered for
       the Flexiplace Program that allowed employees to work from
       home. However, GSA offered her many reasonable
       accommodations, including the opportunity to work at home one
       day a week. GSA also offered her the opportunity to transfer to the
       Milwaukee field office where she could work at home three days a
       week. In addition, GSA offered to transfer her to a less stressful
       team to reduce the frequency of her headaches, altering her
       working hours to reduce the stress of her commute, and reducing
       her work-day to decrease her level of stress. However, the plaintiff
       rejected each of these proposed accommodations. As a result, the
       employer offered her numerous reasonable accommodations.
ii.    Lalla v. Consol. Edison Co., Inc., 2002 U.S. App. LEXIS 6519 (2d
       Cir. 2002). Employee’s request to work from home in order to
       accommodate his disability was not reasonable because to do so
       would have eliminated the essential functions of the employee’s
       job; namely, conducting on-site inspections and repairing electrical
       lines. Furthermore, employee could not identify any other existing
       vacancy within the company for which he was qualified and that
       could also be performed from home. Therefore, although an
       employer must try to find a reasonable accommodation that would
       enable a disabled employee to otherwise perform his job, including
       permitting that employee to work from home, an employer is not
       required to accommodate an individual if doing so would eliminate
       the employee’s essential functions from the job.
iii.   Spielman v. Blue Cross and Blue Shield of Kansas, Inc., 33 Fed.
       Appx. 439 (10th Cir. 2002). Nurse consultant who suffered from
       scleroderma and esophageal dysmotility failed to show that her
       employer’s refusal to accommodate her by allowing her to work at
       home was in violation of the ADA. Instead, the employer’s refusal
       to allow the plaintiff to work from home was based on plaintiff’s


                        42
       history of poor work performance, which had been discussed with
       Plaintiff and well documented at several different points over the
       course of plaintiff’s employ.       Specifically, the employer
       maintained a company-wide policy regarding working at home,
       which itself was based on each particular employee’s prior work
       performance. Because plaintiff did not meet the criteria for
       working at home under the company’s policy, the employer’s
       refusal to accommodate plaintiff was not unreasonable under the
       circumstances.
iv.    Hypes v. First Commerce Corp., 134 F.3d 721 (5th Cir. 1998).
       Bank was not required to allow loan review analyst with chronic
       obstructive lung disease to work at home or part-time as reasonable
       accommodation for disability that limited his ability to travel to
       office regularly. Regular attendance is an essential function of
       most jobs, and employers are not required to accept the
       productivity loss which results from allowing an employee to work
       at home, especially where his presence is necessary to ensure
       efficient functioning of a team.
v.     Smith v. Ameritech, 129 F.3d 857 (6th Cir. 1997). Insurance
       company was not required to allow sales representative with
       herniated disc to work at home. The ADA does not require
       employers to accept productivity loss that results from allowing
       employees to work at home.
vi.    Vande Zande v. State of Wisconsin Dep't of Admin., 44 F.3d 538
       (7th Cir. 1995). A paraplegic worker was not entitled to full-time
       work at home as a reasonable accommodation because her job, as
       most jobs in public and private organizations, involved team work
       under supervision rather than solitary unsupervised work, and team
       work under supervision generally could not be performed at home
       without a substantial reduction in the quality of the employee's
       performance. Under the ADA, an employer is not required to allow
       disabled workers to work without supervision at home where their
       productivity inevitably would be greatly reduced.
vii.   Wojciechowski v. Emergency Tech. Servs. Corp., 1997 U.S. Dist.
       LEXIS 3740 (N.D. Ill. 1997). Internal sales representative who had
       serious attendance problems as a result of her chemotherapy was
       not entitled to work at home because she did not show the
       proposed accommodation was reasonable in terms of either
       efficacy or cost-effectiveness. In addition, she did not show that
       working at home would have allowed her to work regularly and
       full- time, as well as perform each of her other essential duties.
       Employers generally are not required to offer work-at-home as an
       accommodation because of the inevitable reduction in productivity
       that would result.




                        43
viii.   *Misek-Falkoff v. IBM, 854 F. Supp. 215 (S.D.N.Y. 1994), aff'd,
        60 F.3d 811, cert. denied, 116 S.Ct. 1333 (1996). A computer
        analyst and office educator suffering from a physical disorder of
        the nervous system, atypical trigeminal neuralgia, subjecting her to
        frequent absences, fits of rage, emotional outbursts and other
        similar behavior, making it difficult for her to get along with other
        workers and her supervisors was not entitled to work full-time at
        home as an accommodation to her disability. Such work at home
        would not completely insulate her from other employees, and
        would prevent her from performing her essential duty of training
        and teaching other employees.

c. Full-time work-at-home         accommodation      found    not   per   se
unreasonable.

i.      Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th
        Cir. 2001). An issue of fact existed as to whether working at home
        was a reasonable accommodation for a medical transcriptionist
        whose obsessive compulsive disorder (OCD) resulted in her having
        serious attendance problems. The employer had permitted other
        medical transcriptionists to work at home and the employer based
        its denial of the work at home accommodation on the basis of the
        plaintiff’s having a record of two disciplinary warnings for her
        tardiness and absenteeism caused by her condition. It would be
        inconsistent with the purposes of the ADA to permit an employer
        to deny an otherwise reasonable accommodation because of past
        disciplinary action taken due to the disability sought to be
        accommodated. Thus, plaintiff's disciplinary record does not
        constitute an appropriate basis for denying her a work-at-home
        accommodation.
ii.     Anzalone v. Allstate Ins. Co., 1995 WL 21672 (E.D. La. 1995).
        Request by a claims adjuster who suffered from a back injury to
        work at home was not per se unreasonable due to the fact that the
        insurance company had allowed other employees to work from
        their homes, regardless of the fact that the employer offered the
        plaintiff a special chair, therapeutic headsets and rest times as
        needed. It was not evident that his productivity would decrease if
        he worked at home since a substantial part of the plaintiff's job was
        performed in the field rather than at the office.
iii.    The EEOC's position is that an employer must allow a disabled
        employee to work at home if he can perform his duties effectively
        and if doing so does not impose an undue hardship. The EEOC
        does admit, however, that the employer's ability to supervise the
        employee and the employee's need to work with certain equipment
        or tools are factors in this analysis. EEOC Reas. Accom. Guidance,
        Question 33.


                         44
d. "Work-when-able" schedule or unscheduled absences found not to be
required as an accommodation.

i.     Earl v. Mervyns Inc., 207 F.3d 1361 (11th Cir. 2000). Retail store
       acted properly under the ADA when it fired an employee with
       obsessive-compulsive disorder for her tardiness when she could
       not identify any reasonable accommodation that would have
       allowed her to perform the essential job function of arriving at
       work punctually. The employee asked that she be allowed to clock
       in whenever she arrived, without reprimand, and be allowed to
       make up the time at the end of the shift. The employer rejected the
       request as unreasonable and offered either to allow the employee to
       "clock in" 15 minutes ahead of her scheduled shift and receive
       overtime pay, which other employees were not allowed or to
       schedule heron the afternoon or evening shift. When an employee
       cannot meet its burden of identifying                 a reasonable
       accommodation, the employer has no duty to investigate an
       accommodation or to show undue hardship.
ii.    Hollestelle v. Metropolitan Washington Airports Authority, 145
       F.3d 1324 (4th Cir. 1998). Port authority reasonably
       accommodated property distribution technician who suffered from
       depression causing chronic lateness. Employer allowed plaintiff a
       15-minute flex-time window to arrive at work, and altered
       plaintiff's schedule to allow him to arrive 75 minutes later than
       before, but plaintiff continued to arrive late.
iii.   Lauby v. Swanson, 1997 U.S. App. LEXIS 23933 (6th Cir. 1997).
       Heavy equipment operator with back and spinal injury was not
       entitled to work part time or on modified duty as a reasonable
       accommodation where no part-time or modified positions existed
       in his job classification. An employer is not required to create a
       new position as a reasonable accommodation to a disabled
       employee.
iv.    Kennedy v. Applause, Inc., 90 F.3d 1477 (C.D. Cal. 1994), aff'd on
       other grounds, 90 F.3d 1477 (9th Cir. 1996). Request by a sales
       representative with chronic fatigue syndrome for an essentially
       open-ended, "work when able" schedule to accommodate the
       unpredictable changes in her medical condition was held to be
       unreasonable.

e. Full-time pay found not to be required for reduced-work schedule
employee.
i.     Rhodes v. Bob Florence Contractor, Inc., 890 F. Supp. 960 (D.
       Kan. 1995). Lather whose back problems prevented him from
       working more than thirty hours a week was not entitled to be paid


                        45
       for forty hours as a reasonable accommodation. The ADA does not
       require an employer to provide a disabled employee with a higher
       wage rate than that received by other non-disabled employees
       performing the same work.
ii.    The EEOC recognizes that an employer need not give disabled
       employees who work on a part-time schedule as a reasonable
       accommodation more benefits than other part-time workers
       normally receive, except where required by the FMLA. EEOC
       Reas. Accom. Guidance, Question 23.

f. Part-time work may or may not be accommodation.

i.     Lamb v. Qualex, Inc., 33 Fed. Appx. 49 (4th Cir. 2002). Account
       Development Specialist for equipment leasing company who
       suffered from symptoms of major depression failed to produce
       evidence that any reasonable accommodation would allow him to
       perform the essential functions of his job. After an extended
       medical leave, plaintiff’s doctor approved his return to the
       workplace provided that he resume a part-time schedule only.
       Because full-time attendance was deemed an essential function of
       plaintiff’s job, an accommodation in the form of a part-time
       schedule was unreasonable and would have posed an undue
       hardship on the employer. Furthermore, when an employer has no
       part-time jobs available, a request for part-time employment is
       never a reasonable one.
ii.    David Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495
       (7th Cir., 2000) Reasonable jury could find that auto appraiser with
       muscular dystrophy was qualified to perform his job even if he
       could initially only work on a part time basis and could not
       perform car inspection duties. Plaintiff proposed to increase his
       hours until he was working full time, and jury could have found
       that coworker was available to fill in for whatever hours plaintiff
       did not cover at the outset, such that gradual return to full time
       work would have been a reasonable accommodation. Additionally,
       the employee had delegated the task of car inspection for years
       before accident that left him unable to walk, and thus the jury
       could find that this task was not an essential part of the job.
iii.   Ralph v. Lucent Technologies, Inc., 135 F.3d 166 (1st Cir. 1998).
       Carpenter who suffered from depression was entitled to
       preliminary injunction allowing him to work part- time for four
       weeks despite the fact that employer had previously reassigned
       him and granted 52 weeks of paid medical leave. An employer's
       duty to provide reasonable accommodation is not exhausted with a
       single effort, and the relief requested by the employee would not
       cause permanent impact on employer.


                        46
             g. CONCERN: Preferring individuals with a disability in the assignment
             of shifts while maintaining confidentiality of an individual's disability (as
             required by § 102(c)(3)(B), 29 U.S.C. § 42112) may be seen as arbitrary
             or unfair by other employees. For example, minority workers unaware of
             the disability of a non-minority co-worker granted job preferences could
             claim discrimination. This dilemma, however, does not eliminate the need
             to provide reasonable accommodation to the individual with a disability
             and does not constitute undue hardship.

G. Flexible Leave Policies

      1. Generally. An employer is not required to provide additional paid leave as an
      accommodation, but should consider allowing use of accrued leave, advanced
      leave, or leave without pay, where this will not cause an undue hardship.
      Appendix 29 C.F.R. § 1630.2(o). (Note: under the Family and Medical Leave Act
      (FMLA), covered employers are required to provide 12 weeks of unpaid leave to
      qualified employees. See Section IX.K. below discussing relationship between
      ADA and FMLA).

             a. Indefinite leave found not to be required

             i.     Byrne v. Avon Prods., Inc., 25 App. D.C. 72 (7th Cir. 2003).
                    Stationary engineer’s request to be allowed not to work for an
                    extended time was not a reasonable accommodation under the
                    ADA. The employee was incapable of working, as he could not
                    stay awake due to the onset of depression and became too
                    suspicious of his co-workers to tolerate them. The employee did
                    not request a few days off or a part-time position; his only
                    proposed accommodation was not working for an extended time.
                    While the ADA requires reasonable accommodations that will
                    allow the person to "perform the essential functions of the
                    employment position", not working is not a means to perform the
                    job's essential functions and therefore, not reasonable.
             ii.    Wood v. Green, 323 F.3d 1309 (11th Cir. 2003). Employer did not
                    violate the ADA when it did not grant an employee suffering from
                    cluster headaches an indefinite leave of absence because it did not
                    constitute a reasonable accommodation. The indefinite leave of
                    absence was unreasonable since it did not permit the employee to
                    perform the essential functions of his job in the present or in the
                    immediate future. While the employee could not give a date certain
                    when he would be able to return to work, he argued that the outer
                    limits of his absences could reasonably be approximated due to his
                    fourteen-year experience with cluster headaches. However, this
                    argument was unpersuasive, as he could be stricken with another
                    cluster headache soon after his return and require another


                                      47
       indefinite leave of absence. As a result, he was not requesting an
       accommodation that allowed him to continue work in the present,
       but rather, in the future at some indefinite time. However, the court
       noted that the ADA might be violated "if an employee was
       terminated immediately upon becoming disabled without a chance
       to use his leave to recover." Here however, the employee was not
       terminated immediately upon becoming disabled, as he had been
       granted years of discretionary leave and had been on a
       discretionary leave for over one month at the time of his
       termination. Furthermore, prior accommodations do not make an
       accommodation reasonable.
iii.   Harris v. Circuit Court Clerk’s Office, Metropolitan Nashville, 21
       Fed. Appx. 431 (6th Cir. 2001). Clerk’s office was not required to
       give an employee with breast cancer an indefinite leave of absence
       when she could not provide the expected duration of her
       impairment. The defendant held the plaintiff’s position open for
       one year while she underwent treatment, and the plaintiff was
       unable to give a return date at the end of that time. Although the
       plaintiff was released to work by her doctors soon after her
       termination, the defendants had no way of predicting this outcome.
       The ADA does not require an employer to give an employee an
       indefinite leave of absence when the employee cannot provide the
       expected duration of her impairment.
iv.    Boykin v Atc/Vancom of Colorado, L.P., 247 F.3d 1061 (10th Cir.
       2001). Bus company was under no duty to offer bus dispatcher
       position to disabled bus driver six months after termination. The
       bus company had not been able to make a reasonable
       accommodation and did not have a vacant position to reassign the
       disabled employee to at the time of termination. The company was
       not under an obligation to keep him on unpaid leave indefinitely,
       or for an extended period of time, nor under an obligation to offer
       him a bus dispatcher position that became available six months
       later. This period of time should not be used as an exact guideline,
       however, because courts have generally decided issues of
       reasonableness in regards to time on a case-by-case basis.
v.     Amadio v. Ford Motor Company, 238 F.3d 919 (7th Cir. 2001).
       Employer did not have to accommodate assembly line worker with
       blindness in one eye and Hepatits B who had been absent
       approximately 18 months and took 23 medical leaves during his
       last three years of employment with an additional week off.
       Plaintiff’s record of attendance indicated that, even if he had
       returned to work in one week, he was not likely to remain for very
       long before a new ailment afflicted him. The extension of
       plaintiff's already lengthy leave by one more week would have
       been a futile concession, not a reasonable accommodation. While
       an employer should show patience when an employee first falls


                        48
        sick, if an employer bends over backwards to accommodate a
        disabled worker it must not be punished for its generosity by being
        deemed to have conceded the reasonableness of so far-reaching an
        accommodation.
vi.     Cisneros v. Wilson. 226 F.3d 1113 (10th Cir. 2000) Request for
        leave by employee of the New Mexico Department of Children,
        Youth and Families who suffered from depression and acute
        anxiety, was not a "reasonable" accommodation because she could
        not determine the expected length of her impairment. Without an
        expected duration of an impairment, an employer cannot determine
        whether an employee will be able to perform the essential
        functions of the job in the near future and therefore whether the
        leave request is a reasonable accommodation. Plaintiff’s own
        belief as to the duration of her impairment is not sufficient to
        create a triable issue of fact, especially where her belief was
        inconsistent with the evidence from her own doctors.
vii.    Walsh v. United Parcel Service, 201 F.3d 718 (6th Cir. 2000). Pilot
        who suffered impaired hand-eye coordination and cognitive
        difficulties due to automobile accident and took one year of paid
        disability leave was not entitled to additional indefinite medical
        leave as reasonable accommodation. Plaintiff’s physician had
        predicted that his condition would last at least an additional twelve
        to eighteen additional months and could not be sure that he would
        fully recuperate even in that length of time. Accordingly, his
        employer was not required to hold his position open indefinitely in
        the hope that he would someday recover.
viii.   Mitchell v. Washingtonville School Dist., 190 F.3d 1 (2d Cir.
        1999). Head school custodian who suffered difficulty in standing
        and walking due to prosthetic leg was not entitled to indefinite
        medical leave. Plaintiff’s employer was not required to hold
        positions open indefinitely in the hope that his condition would
        improve, especially since he did not give any time frame for when
        he might be able to return.
ix.     Taylor v. Pepsi-Cola Co., 196 F.3d 1106 (10th Cir. 1999). Route
        driver who suffered back injury was not entitled to indefinite
        medical leave of absence as reasonable accommodation. The ADA
        does not require employers to hold injured employees’ jobs open
        indefinitely in the hope that they will recuperate.
x.      EEOC v. Sisters of Providence Hospital, 191 F.3d 460 (9th Cir.
        1999). Hospital did not violate the ADA by terminating
        biomedical technician who failed to return to work after six
        months’ medical leave. Plaintiff did not state that he was fit to
        return to work, nor did he request accommodation; thus, his
        employer could not be liable for failure to extend the leave.




                         49
xi.     Johnson v. E.A. Miller, Inc., 172 F.3d 62 (10th Cir. 1999).
        Employer could terminate factory worker who requested medical
        leave following surgery but did not specify the expected duration
        of the leave. Employers are not required to grant indefinite or
        open-ended leave to allow disabled employees to attempt to
        recuperate.
xii.    Walton v. Mental Health Ass'n of Southeastern Pennsylvania, 168
        F.3d 661 (3d Cir. 1999). ADA does not require employer to allow
        extended leave to depressed job placement specialist as reasonable
        accommodation. Requiring an employer to hold open a position
        indefinitely while waiting for an employee to recuperate is an
        undue hardship.
xiii.   Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042 (6th Cir.
        1998). Employer was not required to grant indefinite leave of
        absence to employee who did not inform him of when she intended
        to return to work. An employer is not required to wait an indefinite
        period of time for an employee to recuperate from a disabling
        condition.
xiv.    Coleman v. Computer Associates Int'l, Inc., 139 F.3d 904 (9th Cir.
        1998). Employer was not required to grant a second leave of
        absence to office worker with TMJ when her physicians indicated
        that she was unable to return to work after her first leave of
        absence. An employer is not required to extend a leave of absence
        indefinitely to allow an employee time to return to work.
xv.     Watkins v. J & S Oil Co., Inc., 164 F.3d 55 (1st Cir. 1998). Gas
        station was not required to hold manager's position open
        indefinitely following a heart attack. Plaintiff had not provided
        medical certification of his condition or had not indicated when he
        would be able to return to work. The ADA does not require
        employers to hold a position open indefinitely or fill it on a
        temporary basis when business necessity compels hiring a
        permanent replacement especially when the absent employee gives
        no indication as to when he will return.
xvi.    Hoang v. Runyon, 124 F.3d 211 (9th Cir. 1997). Post office was
        not required to reinstate postal clerk with clinical depression who
        did not indicate any time period within which he would be able to
        return to work. An employer is not required to wait an indefinite
        time for an employee to become able to perform the essential
        functions of his job.
xvii.   Duckett v. Dunlop Tire Corp., 120 F.3d 1222 (11th Cir. 1997).
        Employer was not required to allow supervisor with high blood
        pressure to exhaust remaining two months of salary continuation
        benefits where employee had received benefits for 10 months and
        had not represented that he would be able to return to work within
        two-month period. Employer need not grant employee "period of


                         50
        time in which to cure his disability" where employee "sets no
        temporal limit on the [requested] grace period, urging only that he
        deserves sufficient time to ameliorate his condition."
xviii. Smith v. Blue Cross Blue Shield, 102 F.3d 1075 (10th Cir. 1996).
       Customer service representative with anxiety disorder was
       properly terminated, because she provided no evidence of the
       expected duration of her complete disability. Employers are not
       required to wait indefinitely for an employee's recovery.
xix.    Monette v. Electronic Data Sys. Corp., 90 F.3d 1173 (6th Cir.
        1996). Customer service representative who, due to neck and
        shoulder injuries, was on disability leave for seven months and
        claimed total disability until his employer decided to terminate
        him, was not entitled to indefinite unpaid medical leave until
        another customer service representative or receptionist position
        opened up. Employers are not required to keep a non-working
        employee on staff indefinitely in the hope that some position may
        become available in the future. Because his employer had no way
        of knowing when or if he would return to work, it was reasonable
        for the company to find a permanent replacement.
xx.     Hudson v. MCI Telecommunications Corp., 87 F.3d 1167 (10th
        Cir. 1996). Customer service representative with carpal tunnel
        syndrome was not entitled to an unpaid leave of absence because
        her condition prevented her from typing and there was no
        indication at the time of her termination that she would ever
        recover and be able to type again. Although a reasonable
        allowance of time for medical care and treatment may constitute a
        reasonable accommodation, employers are not required to provide
        indefinite leave.
xxi.    Myers v. Hose, 50 F.3d 278 (4th Cir. 1995). A county government
        is not required to provide a bus driver with diabetes, hypertension
        and a chronic heart condition with unscheduled paid leave in order
        for the employee to try to recover from these conditions. The ADA
        requires an individual with a disability to be qualified for the
        position with reasonable accommodation. This does not require an
        employer to provide a reasonable accommodation now in the hope
        that sometime in the future the disabled employee will become
        qualified for the position.
xxii.   CONCERN: The EEOC takes the position that the ADA requires
        open-ended leaves for recuperation unless they constitute undue
        hardship. EEOC Reas. Accom. Guidance, Question 18. Therefore,
        the agency contends that employers cannot terminate employees
        whose disability causes them to require time off beyond that
        allowed under a "no-fault" leave of absence policy. EEOC Reas.
        Accom. Guidance, Question 17. The EEOC recognizes, however,




                         51
       that employers have the right to periodic updates. EEOC Reas.
       Accom. Guidance, Question 43.

b. Short-term leave found to be reasonable

i.     Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955 (10th
       Cir. 2002). Car dealership employee’s request for leave as an
       accommodation for breast cancer treatment that was no longer than
       the FMLA already required was not unreasonable. A leave within
       the limitations of the FMLA also is a reasonable accommodation
       under the ADA. The dealership terminated her before the leave had
       expired on the basis that the leave was interrupting their business.
       Thus, the plaintiff established that the dealership failed to
       accommodate her disability and therefore prevented her from
       performing the essential functions of her position.
ii.    Fredenburg v. Contra Costa County Dept. of Health Services, 172
       F.3d 1176 (9th Cir. 1999). Mental health treatment specialist with
       depression and anxiety fulfilled her burden of requesting
       reasonable accommodation by asking for short-term leave of
       absence to recuperate. A temporary, short-term leave may be a
       reasonable accommodation if there is medical evidence that it will
       be effective in relieving a disabled employee's condition.
iii.   Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999).
       Cashier who suffered from fainting episodes and had taken seven
       months' medical leave to obtain treatment was entitled to
       additional one to two months' leave as reasonable accommodation.
       The leave requested was of short and definite duration, plaintiff's
       response to treatment suggested that she would actually be able to
       return to work at end of leave period, and employer had policy of
       granting up to one year of unpaid medical leave to employees with
       medical conditions.
iv.    Criado v. Int'l Business Machines Corp., 145 F.3d 437 (1st Cir.
       1998). Sales representative with depression and anxiety was
       entitled to temporary leave of absence for treatment. A short-term
       leave of absence to allow an employee's physician to designate an
       effective treatment program is a reasonable accommodation under
       the ADA.
v.     Rascon v. U.S. West Communications, Inc., 143 F.3d 1324 (10th
       Cir. 1998). Network technician with post-traumatic stress disorder
       was entitled to short-term leave for counseling and inpatient
       treatment as reasonable accommodation for his condition. Plaintiff
       did not seek an indefinite leave, but only requested permission to
       enter into a four-to-five month treatment program.




                        52
vi.    Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d
       775 (6th Cir. 1998). Issue of fact existed as to whether nurse with
       pustular psoriasis and psoriatic arthritis was entitled to unpaid
       medical leave of several months in order to recuperate. Evidence
       showed that medical leave was routinely granted to other
       employees with similarly serious conditions, which tended to show
       that such unpaid leave would not be an undue hardship for her
       employer.

c. One year of leave found to be unreasonable

i.     Dockery v. North Shore Medical Ctr., 909 F. Supp. 1550 (S.D. Fla.
       1995). One year of unpaid leave is not a reasonable
       accommodation to which a diabetic food service worker who could
       no longer stand because of partial amputation of her feet is entitled
       because this accommodation is unreasonable on its face. As a
       matter of law, employers are not required to provide one year of
       unpaid leave as a reasonable accommodation as long as they do not
       have a policy of granting such leaves to employees.
ii.    CONCERN: The EEOC takes the position that the ADA requires
       open-ended leaves for recuperation unless they constitute undue
       hardship. EEOC Reas. Accom. Guidance, Question 18. Therefore,
       the agency contends that employers cannot terminate employees
       whose disability causes them to require time off beyond that
       allowed under a "no-fault" leave of absence policy. EEOC Reas.
       Accom. Guidance, Question 17. The EEOC recognizes, however,
       that employers have the right to periodic updates. EEOC Reas.
       Accom. Guidance, Question 43.
d. Accrued vacation days may be used for unpredictable disabilities.
i.     Heise v. Genuine Parts Co., 900 F. Supp. 1137 (D. Minn. 1995).
       Outside sales representative with Arnold Chiari Malformation, a
       birth defect which made him periodically suffer severe headaches
       established a genuine issue of material fact that he could perform
       the essential function of visiting his customers on a regular or
       weekly basis with the reasonable accommodation of using accrued
       vacation days when the severity of his headaches made him unable
       to work. The evidence showed that during most of his employment
       the plaintiff's absences due to his headaches did not exceed his
       allotted vacation time, the number of sick days allowed by the
       employer is not stated, and the job description requires employees
       to work flexible hours.
ii.    Dutton v. Johnson County Bd. of County Comm'rs, 859 F. Supp.
       498 (D. Kan. 1994). Request by equipment operator with migraine
       headaches for permission to use vacation time without advance
       notice for unscheduled absences as an accommodation to his


                        53
                   condition was not unreasonable. Employer failed to establish that
                   the alternative accommodations of a part- time work schedule or
                   flexible pre-scheduled full-time schedule would have been
                   effective in enabling the plaintiff to reduce his absenteeism and
                   perform his essential job functions. (Jury returned verdict for the
                   plaintiff.)
            e. Additional leave found not to be required.
            i.     EEOC & Michael Nicosia v. Yellow Freight System, Inc., 253
                   F.3d 943 (7th Cir. 2001). -Dockhand worker diagnosed with an
                   HIV-related cancer, and who was fired as a result of excessive
                   absenteeism may not make request for reasonable accommodation
                   of sick leave as needed without penalty. Such a request is not a
                   reasonable request as a matter of law.
            ii.    Buckles v. First Data Resources, Inc., 176 F.3d 1098 (8th Cir.
                   1999). Credit card analyst with chemical sensitivity due to sinusitis
                   who had used up his allotted sick and personal leave was not
                   entitled to additional and unpredictable unpaid sick leave as a
                   reasonable accommodation. It is unreasonable to require employers
                   to allow unpredictable absences due to employees' medical
                   conditions.
            iii.   *Nelson v. Ryan, 860 F. Supp. 76 (W.D.N.Y. 1994). A blind
                   employee who had already used up all his paid leave for training
                   with a seeing-eye dog is not entitled to additional paid leave to
                   train with a new seeing-eye dog as a reasonable accommodation
                   under the Rehabilitation Act. The employer's offer of allowing the
                   employee to use accrued paid leave, unpaid leave, or credits
                   toward future paid leave for the training is sufficient reasonable
                   accommodation under the Rehabilitation Act.

            f. The EEOC takes the position that an employer cannot penalize an
            employee for work missed during leave taken as a reasonable
            accommodation. Such a penalty, in the EEOC's opinion, constitutes
            retaliation and/or makes the accommodation ineffective. EEOC Reas.
            Accom. Guidance, Question 19. Thus, an employer cannot terminate a
            salesperson on the basis that his sales were below minimum allowed
            annually if such performance is the result of the sales person's taking 5
            months leave of absence as a result of her disability. On the other hand,
            the employer could terminate the salesperson if her annual sales results
            still fall below the minimum sales expectation prorated to take into
            account her 5 months absence.

H. Reassignment To A Vacant Position




                                    54
1. In general, reassignment should be considered only when accommodation
within the individual's current position would pose an undue hardship or if there is
no accommodation that will enable the person to perform the present job. Efforts
should be made to accommodate an employee in the position before reassignment
is considered. S. Rep. at 32; Appendix 29 C.F.R. § 1630.2(o).

       i.      U.S. Airways, Inc. v. Robert Barnett, 122 S. Ct. 1516 (U.S. 2002).
               Airline could not cite the non-existence of a vacant position as the
               basis for denying an injured cargo worker’s request for it to
               accommodate him with a mailroom job, an exception to its
               seniority system. Although the employee already held the position
               in question, the employer claimed that because its established
               policies automatically assigned positions to other workers based on
               seniority, positions would never be vacant. In addition, the airline
               had the reserved the right to change “any and all" portions of the
               seniority system at will. However, in the language of the ADA,
               Congress did not intend for the word “vacant” to have a
               specialized meaning.
       ii.     Parnahay v. United Parcel Services, Inc., 20 Fed. Appx. 53 (2nd
               Cir. 2001). Package car driver who, as a result of severe head
               injuries, could not perform his previous duties, failed to produce
               evidence that the light duties offered as an accommodation
               (customer service, sweeping trucks) could, by themselves, describe
               permanent position. Because the plaintiff could not establish that
               the temporary jobs to which he was assigned before his dismissal
               were actual jobs, he could not meaningfully make a claim for part-
               time status in these jobs as a reasonable accommodation.
       iii.    Ozlowski v. Henderson, 237 F.3d 837 (7th Cir. 2001). Postal
               service did not fail to accommodate postal worker with
               degenerative spinal disease when it did not reassign him to a mail
               flow position which was vacant and for which he was qualified.
               The Postal Service was temporarily leaving the position open
               because it was awaiting the installation of a new computer system.
               A position is not vacant when based on a reason wholly
               independent of the employee's disability the employer chooses not
               to fill it. Even if the Postal Service had the authority to fill the
               position regardless of the informal hold, the position would have
               been temporary until the arrival of a new computer system.
       iv.     Ozlowski v. Henderson, 237 F.3d 837 (7th Cir. 2001). Postal
               Service did not have to reassign postal worker with degenerative
               spinal disease to position as a schemes analyst because he could
               not perform some of the essential functions of that position.
               Plaintiff’s limitations, which included the inability to stand, walk,
               squat, stoop or kneel for prolonged periods of time kept him from
               being able to perform the essential functions such as hanging and



                                 55
        changing signs indicating a change of schemes and climbing
        ladders in order to place and replace the signs.
v.      Tyler v. Ispat Inland Inc., 245 F.3d 969 (7th Cir. 2001). Transfer of
        mentally ill electrician from one plant to another in response to his
        paranoid delusions of co-worker persecution constituted a
        reasonable accommodation. Even if plaintiff’s fears had some
        basis in fact, separation from the problem individuals would still
        be an appropriate, reasonable accommodation. There was no better
        way to allay plaintiff’s fears, short of psychological treatment for
        his underlying condition, than to physically separate him from the
        individuals he thought were harassing him. In addition, the
        employer fully integrated plaintiff into the workforce of the new
        plant.
vi.     Tyler v. Ispat Inland Inc., 245 F.3d 969 (7th Cir. 2001). Employer’s
        failure to transfer mentally ill electrician back to his original
        workplace from which he had originally been transferred out of
        because of his fear of co-worker persecution did not constitute a
        failure to reasonably accommodate. Although plaintiff’s doctor
        requested the transfer back to the original workplace, the request
        did not state that plaintiff could not handle the stress at the new
        plant nor did it explain why another transfer would alleviate
        plaintiff’s safety concerns. In addition, plaintiff refused to give the
        company access to his medical records that it needed in order to
        determine an alternative appropriate accommodation. Without the
        cooperation from plaintiff, the employer could not be held liable
        for failure to design a perfect accommodation. And without a
        medical explanation for plaintiff’s request to transfer back to his
        original plant, common sense dictated that plaintiff be kept away
        from the original source of his stress.
vii.    Jay v. Intermet Wagner, Inc., 233 F.3d 1014 (7th Cir.2000) An
        Illinois factory met its reasonable accommodation responsibility
        under the ADA by placing a millwright, with a torn Achilles'
        tendon in his left ankle, in a temporary job for more than a year
        and then placing him on medical leave for several years before
        reinstating him to another, less strenuous position. Plaintiff’s work
        restrictions prevented his reinstatement as a millwright, and the
        company did not have another open position for which he was
        qualified, and for which he had proper seniority, and thus it acted
        properly when it placed him on medical layoff. The company acted
        reasonably and in good faith considering plaintiff for reassignment
        on a weekly basis and keeping him on medical layoff until an
        opening occurred.
viii.   Vollmert v. Wisconsin Dept. of Transportation, 197 F.3d 293 (7th
        Cir. 1999). Issue of fact existed as to whether state agency failed
        to accommodate clerical worker with dyslexia and learning
        disabilities by transferring her to lower level position rather than


                          56
        continuing to provide additional training in her current job.
        Reassignment is an accommodation that should only be considered
        if it is not possible to accommodate an employee in her current
        position. Plaintiff’s employer did not conclusively establish that
        its attempts to accommodate her had failed; even though her
        performance was poor, vocational expert testified that she could
        meet standards with additional training.
ix.     Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998).
        Issue of fact existed as to whether light duty jobs created by meat
        production plant to accommodate injured employees during
        recuperation were temporary or whether they constituted new
        positions. Positions had no set duration or ending date, and were
        not formally classified as temporary light duty work.
x.      Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667 (7th Cir.
        1998). Disabled automobile workers were entitled to be transferred
        only if available vacant positions existed, they satisfied employer's
        prerequisites and were able to perform the essential functions of
        the proposed new position with or without reasonable
        accommodation. In order to avoid an endless succession of
        reassignments, the term "reasonable accommodation" in this
        context does not include transfer to yet a third vacant job.
xi.     Malabarba v. Chicago Tribune Co., 149 F.3d 690 (7th Cir. 1998).
        Employer reasonably accommodated packager with back and foot
        injuries when it conducted conscientious search for available jobs
        within company and offered him trainee position as customer
        service representative. Employer was not required to search further
        for alternative positions after plaintiff failed customer service
        training for reasons unrelated to his disability.
xii.    Woodman v. Runyon, 132 F.3d 1330 (10th Cir. 1997). Post Office
        was required under Rehabilitation Act to thoroughly investigate
        alternative job positions for postal clerk with thoracic outlet
        syndrome. Once an employee identifies her disability and requests
        reasonable accommodation, it is the duty of a Federal employer,
        which has a greater duty to reasonably accommodate disabled
        persons than a private employer, to consider reassignment and
        identify possible positions to which employee might be reassigned.
xiii.   Bryant v. Better Business Bureau, 923 F. Supp. 720 (D. Md. 1996).
        Transferring an employee with a hearing problem to a position that
        required few telephone calls rather than accommodating her in her
        prior position by providing a TTY device established a genuine
        issue of material fact that the employer failed to reasonably
        accommodate her disability. Although an employer can provide the
        accommodation that is the least burdensome or expensive, it
        cannot reassign an employee unless there is no accommodation
        which would allow her to perform her current job or


                         57
               accommodating her would impose an undue hardship. In this case,
               the employer failed to show that providing the device would
               impose an undue hardship.
       xiv.    Vazquez v. Bedsole, 888 F. Supp. 727 (E.D.N.C. 1995). Deputy
               Sheriff who, as a result of depressed skull fracture experienced
               periodic epileptic seizures, nausea, dizziness and headaches which
               made her unable to perform the essential functions of her previous
               position established a genuine issue of material fact that her
               employer violated the ADA when it terminated her rather than
               reassigning her to a vacant position as a reasonable
               accommodation. The plaintiff showed that although she can no
               longer drive a car, carry a weapon, or apprehend a fugitive, she is
               still qualified to perform various other deputy sheriff positions that
               do not require her to perform these duties.
2. Reassignment to equivalent, vacant position without bumping. Employers
should reassign individuals with a disability to an equivalent position, in terms of
pay, status, etc., if the individual is qualified and if the position is vacant, or
becomes vacant within a reasonable time. The ADA does not require employers
to bump other employees out of their positions or to create a new job for the
benefit of the employee with a disability. S. Rep. at 32; Appendix to 29 C.F.R. §
1630.2 (o).

       a. Transfer found to be required to a position of equivalent grade or level

       i.      Mclean v. Runyon., 222 F.3d 1150 (9th Cir. 2000) U.S. Postal
               Service failed to accommodate nonprobationary mark-up clerk
               with neck and shoulder injuries that made him unable to perform
               his job when it did not reassign him to a vacant position that was at
               the same grade or level as his own. The question whether a vacant
               position is at the same grade or level as an employee's current
               position must turn on objective differences between the two
               positions, such as pay or benefits, not merely on an employer's
               bare assertion that the positions are not equivalent. Plaintiff
               presented evidence of at least one vacancy offering the same salary
               as his current position and absent evidence of a significant
               objective difference between the two positions, such as status or
               benefits, the positions are equivalent. The personnel specialist did
               not identify any difference in pay or status between plaintiff's
               current position and the vacant position and subsequently
               acknowledged that the only difference between the positions is
               salary.
       b. Transfer found not to be required because no vacant positions
       available.
       i.      U.S. Airways, Inc. v. Robert Barnett, 122 S. Ct. 1516 (U.S. 2002).
               Airline could not cite the non-existence of a vacant position as the


                                 58
       basis for denying an injured cargo worker’s request for it to
       accommodate him with a mailroom job, an exception to its
       seniority system. Although the employee already held the position
       in question, the employer claimed that because its established
       policies automatically assigned positions to other workers based on
       seniority, positions would never be vacant. In addition, the airline
       had the reserved the right to change “any and all" portions of the
       seniority system at will. However, in the language of the ADA,
       Congress did not intend for the word “vacant” to have a
       specialized meaning.
ii.    Coulson v. The Goodyear Tire & Rubber Co., 31 Fed. Appx. 851
       (6th Cir. 2002). Employer did not have to transfer processing
       technician who suffered from major depression and accompanying
       symptoms, which made him prone to suicide and caused him to
       issue threats to coworkers, to a position in a different department
       because there were no vacant positions available. Plaintiff could
       not prevail because he failed to offer proof that there were
       currently available positions for which he was qualified.
iii.   Bristol v. The Board Of County Commissioners Of The County Of
       Clear Creek, 281 F.3d 1148 (10th Cir. 2002). Jailer who was
       discharged because he could no longer perform the essential
       functions of the position due to a back injury, was not entitled to
       reassignment to a dispatcher position because the position was not
       vacant at the time of his request. A position is vacant for purposes
       of considering whether an employer has a duty to transfer a
       disabled employee to that position only if the employer knows, at
       the time the employee asks for a reasonable accommodation, that
       the job opening exists or will exist in the fairly immediate future.
       A position is not vacant if the employer did not know at the time
       the employee asks for a reasonable accommodation that the
       position would become vacant in the fairly immediate future, even
       if it became available within a reasonable time after the
       employee’s request had been made.
iv.    Parnahay v. United Parcel Services, Inc., 20 Fed. Appx. 53 (2nd
       Cir. 2001). Package car driver who, as a result of severe head
       injuries suffered while unloading a truck was unable to perform the
       duties of his position, failed to establish that there was a vacant,
       light-duty position to which the defendant could reassign him. An
       employer need not reassign an employee if no position is vacant,
       nor is the employer obliged to create a new position to
       accommodate the employee.
v.     Jackan v. New York State Dept. of Labor, 205 F.3d 562 (2nd Cir.
       2000). An asbestos control bureau’s safety and health inspector, a
       field job that requires climbing ladders and entering small spaces,
       was not entitled to transfer to the desk job he had held for 12 years
       because he could not establish that there was a vacant position into


                        59
        which he could have been transferred pursuant to then-existing
        civil service rules. An employee seeking a transfer to a vacant
        position bears the burden of production and of persuasion on the
        question of the existence of a vacancy into which he or she might
        have been transferred, under the Americans with Disabilities Act
        and Section 504 of the Rehabilitation Act .
vi.     Treanor v. MCI Telecommunications Corp., 200 F.3d 570 (8th Cir.
        2000). Manager with depression and chronic fatigue who had
        taken 16 months’ medical leave was not entitled to be reinstated to
        her former position on a part-time basis as reasonable
        accommodation when her employer had filled that position in the
        meantime. An employer is not required to hold a position open
        indefinitely while waiting for a disabled employee to recuperate.
        Thus, even if plaintiff’s former position could be restructured to fit
        a part-time schedule, it was no longer vacant, and her employer
        was not required to bump the current holder of her job in order to
        reinstate her. Moreover, plaintiff’s employer had offered her the
        opportunity to apply for another job within the company and she
        had rejected that opportunity.
vii.    Spraggs v. Sun Oil Co., 2000 U.S. App. LEXIS 10694 (10th Cir.
        2000). A lube service worker who was terminated while
        recovering from back & neck injuries failed to establish that
        reassignment would have been a reasonable accommodation.
        Reassignment to his former position was not a reasonable
        accommodation because the position no longer existed and other
        employees were performing the job duties. Plaintiff’s list of
        vacant positions to which he could be reassigned was also an
        ineffective accommodation, as they all require tasks that the
        plaintiff could not perform due to his back restrictions.
viii.   Martin v. State of Kansas, 190 F.3d 1120 (10th Cir. 1999).
        Correction officer who could not run, lift heavy weights or subdue
        violent inmates due to degenerative joint arthritis in his right knee
        was not entitled to be placed on permanent tower duty as
        reasonable accommodation. No permanent tower guard positions
        existed at the prison where plaintiff was employed, and employers
        are not required to create new positions for disabled employees.
        Moreover, even though plaintiff had been assigned to regular tower
        duty for three years due to his seniority, he was not entitled to such
        duty by the terms of any collective bargaining agreement.
ix.     Wellington v. Lyon County School Dist., 187 F.3d 1150 (9th Cir.
        1999). Issue of fact existed as to whether maintenance worker
        with carpal tunnel syndrome who was precluded from making
        repetitive motions or lifting more than 20 pounds was entitled to
        transfer to newly created safety aide position. Although position
        did not exist prior to his request for transfer, evidence indicated
        that school district planned to create the position regardless of


                          60
        whether or not it transferred him. Thus, rule of law that employers
        are not required to create new positions specifically for disabled
        employees was inapplicable.
x.      Sutton v. Lader, 185 F.3d 1203 (11th Cir. 1999). Temporary
        construction analyst who could not perform strenuous physical
        labor because he was recovering from a heart attack was not
        entitled to be transferred to light-duty position pending his full
        recovery. Plaintiff’s employer had no permanent or temporary
        light-duty positions to which he could be transferred, and was not
        required to create one as an accommodation.
xi.     Morris v. Henderson, 194 F.3d 1305 (4th Cir. 1999). Postal worker
        who was on modified duty in Tampa, Florida after suffering on-
        the-job injury and sought to move to Asheville, North Carolina
        was not entitled to have a similar light-duty position created for
        him there. The Rehabilitation Act does not require that employers
        make light-duty positions portable or that they create new
        modified-duty positions where none currently exist.
xii.    Mitchell v. Washingtonville School Dist., 190 F.3d 1 (2d Cir.
        1999). Head school custodian who suffered difficulty in standing
        and walking, due to prosthetic leg, was not entitled to be
        reassigned to bus dispatcher position. No vacant dispatcher
        positions were available at the time of plaintiff’s request for
        transfer, and the ADA does not require employers to create new
        jobs as reasonable accommodation for disabled employees.
xiii.   Droste v. The Kroger Co., 187 F.3d 635 (6th Cir. 1999). Cashier
        who could not perform repetitive motions due to shoulder injury
        was not entitled to transfer to liquor department. Evidence showed
        that no vacant positions existed in liquor department at the time
        plaintiff requested transfer, and an employer is not required to
        create a new position as reasonable accommodation to a disabled
        employee.
xiv.    Larson v. Dep’t of Veterans’ Affairs, 189 F.3d 473 (9th Cir. 1999).
        Veterans’ hospital was not liable to respiratory therapist for failing
        to reassign him. Even though a Federal employer has an
        affirmative duty under the Rehabilitation Act to seek alternative
        positions for disabled employees, plaintiff presented no evidence
        that any vacant position existed for which he was qualified.
xv.     Pond v. Michelin North America, Inc., 183 F.3d 592 (7th Cir.
        1999). Manufacturer was not required to reassign factory worker
        with Hepatitis C to occupied lighter duty position despite the fact
        that she had sufficient seniority under an applicable collective
        bargaining agreement to "bump" the employee who occupied the
        position. The ADA does not require employers to bump other
        employees regardless of whether the option to do so is available
        under a collective bargaining agreement (CBA). Thus, since


                          61
        plaintiff was suing under the ADA rather than attempting to
        enforce the CBA itself, she had no grounds for relief.
xvi.    Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667 (7th Cir.
        1998). Automobile workers were not entitled to be reassigned to
        jobs occupied by temporary employees as reasonable
        accommodation for their conditions. Even temporary employees do
        not have to be "bumped" out of a job to make room for a disabled
        full-time employee.
xvii.   Terrell v. USAIR, 132 F.3d 621 (11th Cir. 1998). Airline was not
        required to allow reservation agent with carpal tunnel syndrome to
        work part-time where no vacant part-time positions existed at the
        time the request for accommodation was made. Employers are not
        required to create new positions that are not available under
        existing employment policy as reasonable accommodation for
        disabled employees.
xviii. Arnold v. Stark County District Library, 166 F.3d 1213 (6th Cir.
       1998). Depressed librarian's request for accommodations such as
       transfer to a job which had no contact with others, bumping less
       senior employees to create a vacant position for her, or recalling
       her when a vacancy occurred were not reasonable. Employer did
       not have any positions available that were free of regular
       communications with other employees. The ADA does not require
       employers to provide indefinite leave or to remove other
       employees from their position in order to reassign a disabled
       individual.
xix.    Mustafa v. Clark County School Dist., 157 F.3d 1169 (9th Cir.
        1998). Issue of fact existed as to whether teacher with depression
        and anxiety was entitled to be transferred to a non-classroom
        position as a reasonable accommodation. Since plaintiff was
        claiming to be suffering from panic attacks, a non-classroom
        setting would have alleviated this condition to some degree, and he
        had also performed well in such a setting previously. Thus,
        plaintiff presented substantial evidence that proposed
        accommodation would have been effective in allowing him to
        perform his job.
xx.     *Gonzagowski v. Widnall, 115 F.3d 744 (10th Cir. 1997). Air
        force was not required to transfer computer programmer with
        anxiety disorder because there was no evidence that a computer
        operator position was open and he did not establish that he
        requested such transfer. Although the air force offered him the
        transfer as a settlement of his claims, the offer was not proof that
        an operator position was vacant at the time.
xxi.    Smith v. Ameritech, 129 F.3d 857 (6th Cir. 1997). Sales
        representative with herniated disc was not entitled to reassignment
        where he did not show that vacant position existed at the time of


                         62
        his request. An employer is not required to create a new position as
        a reasonable accommodation for disabled employee.
xxii.   McCreary v. Libby-Owens-Ford Co., 132 F.3d 1159 (7th Cir.
        1997). Glass manufacturing company was not required to reassign
        factory worker with back injury to quality control department
        where no vacant full-time position in that department existed at the
        time the employee requested reassignment. Employers are not
        required to create new positions or "bump" other employees from
        their positions in order to reasonably accommodate a disabled
        employee.
xxiii. Briscoe v. US West Communications, Inc., 1997 U.S. App. LEXIS
       25161 (9th Cir. 1997). Employer was not required to reassign
       employee with repetitive stress and shoulder injuries where no
       permanent vacant positions for which plaintiff was qualified
       existed at the time of her discharge. An employer is not required to
       create a new position as reasonable accommodation for a disabled
       employee.
xxiv. Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019 (7th Cir. 1997).
      Even though department store considered creating new position as
      telephone operator for blind applicant, applicant could not
      predicate a claim under the ADA for its failure to do so because
      employer is not required to create new job slot for disabled
      employee who is not qualified for position sought.

c. Transfer found not to be required if individual is not qualified for the
position s/he desires.
i.      Bratten v. SSI Services, Inc., 185 F.3d 625 (6th Cir. 1999).
        Mechanic who suffered back, shoulder and arm injuries as result of
        on-the-job accident was not entitled to reassignment. A disabled
        employee may be entitled to reassignment even if he cannot be
        accommodated in his current position; however, plaintiff was
        unqualified for the positions for which he applied because they
        required similar physical skills to automobile mechanic position.
ii.     Taylor v. Pepsi-Cola Co., 196 F.3d 1106 (10th Cir. 1999). Route
        driver who suffered back injury was not entitled to reassignment.
        Both positions that became vacant during plaintiff’s medical leave
        required physical labor that he could not perform; thus, no vacant
        positions existed at the company for which he was qualified.
iii.    Gonzales v. City of New Braunfels, 176 F.3d 834 (5th Cir. 1999).
        Diabetic police officer who failed driving and firearms tests was
        not entitled to be transferred to position of evidence technician as
        reasonable accommodation. Since qualifications for evidence
        technician position included firearms and driving certification,
        plaintiff was not qualified for alternative position he requested.



                         63
iv.     Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667 (7th Cir.
        1998). Automobile factory was not required to transfer disabled
        employees to jobs for which they were not qualified as reasonable
        accommodation for their conditions. An employer is not required
        under the ADA to abandon its legitimate, non-discriminatory
        policies defining job qualifications, prerequisites and entitlements
        to internal transfers. These include rejection of employees who are
        under qualified or overqualified for a particular job, preference for
        full- time over part-time employees for vacant full-time positions,
        "up or out" policies under which employees who do not advance at
        a set rate are terminated, and "non-demotion" policies under which
        employees are not eligible for return to lower positions.
v.      DePaoli v. Abbott Laboratories, 140 F.3d 668, 7 A.D. Cases 1828
        (7th Cir. 1998). Factory was not required to transfer employee who
        was unable to perform assembly line work due to hand injury,
        where no other job existed for which she satisfied employer's
        prerequisites. An employer is not required to create a new position
        or waive legitimate, nondiscriminatory prerequisites as an
        accommodation to a disabled employee.
vi.     Brickers v. Cleveland Board of Education, 145 F.3d 846 (6th Cir.
        1998). School district was not required to transfer bus driver with
        back injuries that prevented her from lifting to alternative position
        as bus attendant. Since bus attendant was required to physically
        assist handicapped students in boarding the bus, lifting was an
        essential function of that position and plaintiff was thus not
        qualified for it. An employer is not required to transfer a disabled
        employee to a position for which she is not qualified.
vii.    Foreman v. Babcock & Wilcox Co., 113 F.3d 1402 (5th Cir. 1997).
        Expeditor who could not perform the essential functions of his job,
        due to his pacemaker, was not entitled to be reassigned to the
        positions he requested because he did not show that he had the
        requisite skill, experience, education and other job-related
        requirements to qualify for these positions.
viii.   Bender v. Safeway Stores, Inc., 1997 U.S. App. LEXIS 22449 (9th
        Cir. 1997). Truck driver with shoulder injuries who applied for
        open driving position, for which he was not qualified, was not
        entitled to be considered for alternative vacant positions. A job
        applicant must be qualified for the position for which he applies.
ix.     Still v. Freeport-McMoran, Inc., 120 F.3d 50 (5th Cir. 1997).
        Warehouse clerk who was blind in one eye was not entitled to be
        transferred to a job as an outside rig worker as reasonable
        accommodation. Plaintiff admitted that he could not perform the
        essential functions of that position, and an employer is not required
        to transfer an employee to a position for which he is not qualified.




                         64
x.     Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7th Cir. 1996). Coal
       mine roof bolter with work-related shoulder injury did not have to
       be reassigned to a vacant position where he could not perform the
       essential functions of overhead physical labor of the position he
       held, and it was undisputed that given his physical restrictions, no
       other union positions which he could have performed were
       available.
xi.    Turco v Hoechst Celanese Corp., 101 F.3d 1090 (5th Cir. 1996).
       Employer's refusal to reassign diabetic chemical process operator
       to the less strenuous analyzer technician position was not a
       violation of the ADA because his difficulty walking, climbing and
       concentrating made him unqualified for the analyzer technician
       position as well. Moreover, the employee's other performance
       problems, absenteeism and failure to follow proper procedures,
       made him unqualified for the vacant position. In addition, the
       employee was not entitled to a transfer to the day-shift as a
       reasonable accommodation because he would still, by his own
       admission, be unable to perform the essential functions of his work
       because both the physical and mental demands would be the same.
xii.   Marschand v. Norfolk and W. Ry. Co., 876 F. Supp. 1528 (N.D.
       Ind. 1995), aff'd on other grounds, 81 F.3d 714 (7th Cir. 1996).
       Engineer who was offered three clerical positions was properly
       accommodated, even though his employer did not offer him other
       specific positions which had become vacant, and which the
       engineer believed he was qualified to perform. The plaintiff failed
       to show that he was qualified to perform the other positions that
       became vacant, and in any event, reasonable accommodation does
       not require the railroad to provide the engineer with the position of
       his choice.
d. Transfer found not to be required if individual is unable to perform the
essential functions of his/her present position.
i.     Williams, v. United Insurance Company of America., 253 F.3d
       280 (7th Cir. 2001). Employer was not required to train employee
       with leg injuries who cannot perform previous job so as to promote
       her to another job. Neither promotion nor training, which was not
       given to other employees, was required from the employer as a
       reasonable accommodation.
ii.    Parisi v. Coca-Cola Bottling Co. of New York, Inc., 172 F.3d 38
       (2d Cir. 1999). Employer did not have duty to find alternative
       position for deliveryman with knee injury who was not qualified
       for his current job. The ADA does not require employers to
       provide transfers to disabled employees who are not qualified for
       their current positions in the absence of a uniform corporate policy
       or practice of transferring employees in similar circumstances.




                        65
iii.   Joe v. West, 135 F.3d 769 (4th Cir. 1998). Defense Department
       was not required to reassign typist with eyestrain to non-typing
       position. The Rehabilitation Act does not require reassignment as a
       reasonable accommodation to a disabled employee.
iv.    *Guillot v. Garrett, 970 F.2d 1320 (4th Cir. 1992). A civilian
       computer specialist, who was unable to satisfy the security
       clearance requirement for a Navy position from which he was
       terminated because of his alcohol and cocaine addiction, did not
       have to be transferred or reassigned to a non-sensitive position
       within the Navy. An employer is not required to transfer or
       reassign an employee who is not otherwise qualified for the
       position he then holds.
v.     The EEOC recognizes that applicants and "probationary"
       employees who have never adequately performed the essential
       functions of their jobs are not eligible for preferential treatment in
       reassignment. EEOC Reas. Accom. Guidance, Question 25.

e. Transfer found to be required if disability causes employee to be
unable perform essential functions of present position and s/he is qualified
for the position available.

i.     Dilley v. SuperValu, Inc., 296 F.3d 958 296 (2002). Employer’s
       offered accommodation to truck driver who due to back problems
       could not lift more than 60- pounds was unreasonable. One of the
       offered accommodations was a demotion to a lesser paid position
       and the other was non-vacant. Thus the jury properly found that the
       employer should have considered other equivalent driving
       positions within his lifting restrictions before considering a
       demotion.
ii.    Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d
       1011 (8th Cir. 2000). A secretary, who’s bilateral carpal tunnel
       syndrome made her unable to perform typing duties, raised an
       issue of fact as to whether her employer could have reassigned her
       to another position. Upon learning of the plaintiff’s condition, the
       employer informed her there were no non-keying positions
       available. However, the plaintiff’s sworn statements that positions
       were available for which she was qualified, her submission of job
       postings, and her competent performance for over 18 years create a
       question of fact as to whether she was qualified for any of the
       available positions and whether reassignment to one of these
       positions would be a reasonable accommodation.
iii.   EEOC v. Stowe-Pharr Mills, Inc., 216 f.3d 373 (4th Cir. 2000). A
       factory that ignored a worker’s repeated request for reassignment
       to a vacant position within a wooden-floored plant failed to
       provide a reasonable accommodation. Her doctor instructed her to


                         66
        wear thick-support shoes and restricted her from working on
        concrete floors. Company employees informed her about openings
        at the company’s wooden-floored plants and plaintiff made
        numerous requests for transfer from the time she went on medical
        leave until her discharge, but her management refused to reassign
        her.
iv.     Burns v. Coca-Cola Enterprises, Inc. 222 F.3d 247 (6th Cir., 2000)
        Bottling Company had the obligation of considering reassigning
        product deliverer who suffered a serious on-the-job back injury
        once it became clear that he no longer could perform the essential
        functions of his original job. An employer has a duty under the
        ADA to consider transferring a disabled employee who can no
        longer perform his old job even with accommodation to a new
        position within the Company for which that employee is otherwise
        qualified.
v.      Smith v. Midland Brake, Inc.,180 F.3d 1154 (10th Cir. 1999) (en
        banc). Issue of fact existed as to whether factory assembler with
        chronic dermatitis of the hands who could not perform repetitive
        motions was a qualified individual with a disability even though
        there was no accommodation that would enable him to perform the
        essential functions of his current job. The term "reasonable
        accommodation" under the ADA includes reassignment, and an
        individual who can perform the essential functions of a position to
        which he may reasonably be reassigned is thus qualified.
vi.     McGregor v. Nat'l Railroad Passenger Corp., 176 F.3d 1249 (9th
        Cir. 1999). Issue of fact existed as to whether railroad ticket agent
        with 20-pound lifting restriction was entitled to reassignment.
        Plaintiff's manager testified that at the time she was terminated
        twelve vacant positions existed which met her medical restrictions
        and for which she had the seniority to bid under the applicable
        collective bargaining agreement.
vii.    Gile v. United Airlines, Inc., 95 F.3d 492 (7th Cir. 1996). Data
        entry operator with depression and sleep disorder who could no
        longer work the night-shift may be entitled to reassignment to a
        vacant equivalent day-shift position for which she was qualified
        within the airline. Employers may be obligated to transfer an
        employee to a different position where the employee can no longer
        perform the essential functions of the position she currently holds.
viii.   Benson v. Northwest Airlines, Inc., 62 F.3d 1108 (8th Cir. 1995).
        Mechanic with Parsonage-Turner syndrome, a rare neurological
        disorder which can cause pain, weakness or numbness in the arm
        and shoulder, raised an issue of fact as to whether he was qualified
        for the engineering positions for which he applied and whether
        reassignment there would be a reasonable accommodation because
        he presented evidence that he performed comparable jobs in the


                         67
       past. Mechanic's manager had disqualified him from his position as
       a plant maintenance mechanic due to a letter from the mechanic's
       doctor advising that he never again engage in work involving
       extensive or repetitive use of his left arm and shoulder.
f. Employers found not to be required to make a temporary, light-duty
position permanent.
i.     Dalton v. Subaru-Isuzu Automotive, Inc., (7th Cir. 1998).
       Automobile workers with permanent conditions were not entitled
       to be reassigned to temporary light-duty positions, created by
       employer, in order to allow employees with temporary disabilities
       to recuperate. Such an accommodation would require plaintiffs'
       employer to create new full- time permanent positions, which is
       not mandated under the ADA.
ii.    Laurin v. Providence Hospital, 150 F.3d 52 (1st Cir. 1998).
       Hospital was not required to accommodate nurse with seizure
       disorder by assigning her to permanent day shift despite the fact
       that it had done so on a temporary basis. An employer is not
       required to make a temporary position permanent as a reasonable
       accommodation to a disabled employee.
iii.   *Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997). Letter carrier
       who, following hip surgery, could not push, pull or lift more than
       ten pounds and therefore sought reassignment, did not satisfy his
       burden of showing there was an available permanent light-duty
       position that he could perform simply by showing he had
       previously been assigned a temporary light-duty position.
       Although conversion of a temporary job into a permanent job may
       be required in the rare case, the carrier presented no evidence that
       the costs of such a conversion were slight in relation to its benefits.

g. Transfer found not to be required if individual rejects only available
position

i.     *Fedro v. Reno, 21 F.3d 1391 (7th Cir. 1994). U.S. Marshall's
       Service was not required to provide Criminal Investigator returning
       from leave caused by hepatitis-B a new full-time position when
       such position was not available and employee had rejected
       defendant's offer of the only new position available which was on a
       part-time basis.
h. Disabled individuals found to be entitled to preferential treatment in a
company-wide reassignment.
i.     U.S. Airways, Inc. v. Robert Barnett, 122 S. Ct. 1516 (U.S. 2002).
       An airline was entitled to a rebuttable presumption that an injured
       cargo worker’s request for an accommodation that would require
       the airline to ignore its established seniority system was


                         68
       unreasonable if it conflicted with established rules for job
       assignments. Seniority systems will be sustained unless they have
       been changed so frequently that employees have no reasonable
       expectations or the plans include too many exceptions. In short, the
       employer must ignore its seniority system if the plaintiff has
       demonstrated that it has done so in the past for other employees.
ii.    Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en
       banc). Factory assembler with chronic dermatitis of the hands who
       could not perform repetitive motions was entitled to be reassigned
       to vacant position for which he was qualified. An employer's
       obligation to reassign does not merely mean that it must allow a
       disabled employee to compete for a vacant position on the same
       footing as non-disabled employees. Rather, if a vacant position
       exists for which the employee is qualified and does not require
       promotion or waiver of bona fide business policy or seniority
       system, employer is obligated to give that position to the disabled
       employee. However, this obligation exists only if efforts to
       accommodate disabled employee in his current job have failed;
       employee is not entitled to insist on reassignment in preference to
       accommodation in his current position.
iii.   Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998).
       Issue of fact existed as to whether meat production plant failed to
       reasonably accommodate injured employees on medical layoff
       when it automatically considered them only for vacant production
       positions, did not offer them non-production jobs unless they
       independently learned about and bid for them, and refused them
       access to the break room where non-production jobs were posted.
       An employer is required to consider all available alternative
       positions when a disabled employee requests transfer and ensure
       that the employee has an opportunity to learn about and apply for
       those jobs.
iv.    The EEOC contends that an employer must (as a reasonable
       accommodation) reassign a disabled employee who is qualified for
       the vacant position to the position regardless of whether there are
       other, more qualified candidates. The EEOC asserts that the
       employer must place the individual in the position that comes
       closest to the employee's current position in terms of pay, status,
       geographical location, etc. If several positions are equally similar,
       the employer should consult with the employee about his/her
       preference. The EEOC recognizes, however, that such disabled
       employees are not entitled to a promotion; if the new assignment
       would constitute a promotion, the disabled employee must
       compete with all other job applicants. EEOC Reas. Accom.
       Guidance, Introduction to Reassignment. The EEOC also
       recognizes that applicants and "probationary" employees who have
       never adequately performed the essential functions of their jobs are


                        69
       not eligible for this preference in reassignment. EEOC Reas.
       Accom. Guidance, Question 25.
i. Employees found not to be entitled to preferential treatment in
reassignment.
i.     U.S. Airways, Inc. v. Robert Barnett, 122 S. Ct. 1516 (U.S. 2002).
       An airline was entitled to a rebuttable presumption that an injured
       cargo worker’s request for an accommodation that would require
       the airline to ignore its established seniority system was
       unreasonable if it conflicted with established rules for job
       assignments. Seniority systems will be sustained unless they have
       been changed so frequently that employees have no reasonable
       expectations or the plans include too many exceptions. In short, the
       employer must ignore its seniority system if the plaintiff has
       demonstrated that it has done so in the past for other employees.
ii.    EEOC v. Sara Lee Corporation 237 F.3d 349 (4th Cir. 2001)
       Employer did not have to disregard its established seniority policy
       to accommodate an epileptic auto packing machine operator.
       Plaintiff had requested her employer bypass employees twenty
       years her senior in order to accommodate her request to remain on
       first shift. The ADA does not require employers to disrupt the
       operation of a defensible and non-discriminatory company policy
       in order to provide a reasonable accommodation. To mandate that
       a company exempt workers from this long-standing policy would
       disrupt the legitimate expectations of long-time employees. It
       could potentially expose the company to the threat of lawsuits by
       disgruntled employees who were placed behind employees in need
       of accommodation. The ADA does not require employers to
       penalize employees free from disability in order to vindicate the
       rights of disabled workers.
iii.   EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000)
       Pharmaceutical warehouse did not violate the ADA by failing to
       reassign warehouse picker with lateral epicondylitis (tennis elbow)
       to a number of vacant clerical positions she was qualified to
       perform. In every case the applicant chosen for the vacant clerical
       job was better qualified than plaintiff in the sense of being likely to
       be more productive. Furthermore, the employer had a bona fide
       policy, consistently implemented, of giving a vacant job to the best
       applicant rather than to the first qualified one The ADA does not
       require an employer to reassign a disabled employee to a job for
       which there is a better applicant, provided it's the employer's
       consistent and honest policy to hire the best applicant for the
       particular job in question rather than the first qualified applicant.
iv.    Allen v. Rapides Parish Sch. Bd., 204 F.3d 619 (5th Cir. 2000). A
       school’s refusal to transfer a librarian to a position that would
       muffle the effects of tinnitus, which caused him to hear a


                         70
       continuous loud ringing in his ears, does not constitute
       discrimination under the ADA. The Act does not require an
       employer to give an employee with a disability his job of choice,
       especially when there are qualified individuals who desire the
       same position. Even if the school=s transferring him to a lower
       paying librarian position rather than his requested elementary
       school principal position was unfair, it is not a discriminatory
       action under the ADA.
v.     Burns v. Coca-Cola Enterprises, Inc., 222 F.3d 247 (6th Cir., 2000)
       Bottling Company’s failure to consider product deliverer who
       suffered a serious on-the-job back injury, for reassignment to
       several positions because employee applied for only one such
       position does not constitute a violation of its duty to accommodate
       plaintiff’s disability under the ADA. Bottling company’s policy
       required plaintiff to file an application for every available position
       within his restrictions, but he only applied for one such position.
       Allowing Plaintiff to recover despite his failure to abide by his
       employers non-discriminatory transfer policy would convert a
       nondiscrimination statute into a mandatory preference statute, a
       result which would be inconsistent with the nondiscriminatory
       aims of the ADA. The ADA does not require employers to waive
       legitimate, non-discriminatory employment policies or displace
       other employees' rights to be considered in order to accommodate
       a disabled individual.
vi.    Barnett v. U.S. Air, Inc., 196 F.3d 979 (9th Cir. 1999). Airline
       customer service agent with back injury was not entitled to be
       transferred to mail room position for which he was qualified but
       for which he lacked the seniority to bid. A disabled employee is
       not entitled to preferential treatment over other employees in
       reassignment. The ADA is an anti-discrimination statute, not a
       mandatory preference statute, and thus requires no more than
       equality between disabled and non-disabled employees in hiring
       and transfer decisions.
vii.   Daugherty v. El Paso, 56 F.3d 695 (5th Cir. 1995), cert. denied,
       116 S.Ct. 1263 (1996). An insulin-dependent bus driver's disability
       discrimination claim failed because there was no proof that he was
       treated any worse than other displaced employees who were
       searching for new jobs with the city. The ADA does not require
       that disabled persons be given priority over non-disabled persons
       in the hiring or reassignment process.
j. Transfer found not to be restricted only to positions in the same
department or to positions previously requested.
i.     Droste v. The Kroger Co., 187 F.3d 635 (6th Cir. 1999). Cashier
       who could not perform repetitive motions due to shoulder injury
       was not entitled to retain her salary after transferring to salad bar


                         71
       position. Wage rates for positions in plaintiff’s workplace were set
       by collective bargaining agreement, and employers are not
       required to violate collective bargaining agreements as reasonable
       accommodation under the ADA.
ii.    McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir. 1999).
       Issue of fact existed as to whether county failed to reasonably
       accommodate systems analyst with anxiety and panic disorder
       when it refused to consider his application for transfer. Since
       evidence showed that vacancies occurred frequently and transfers
       were generally granted on an ad hoc basis without regard to
       seniority, issue of fact existed as to whether defendant could have
       accommodated plaintiff by transferring him to a vacant position for
       which he was qualified.
iii.   Gile v. United Airlines, Inc., 95 F.3d 492 (7th Cir. 1996). Airline
       may be required to transfer data entry operator with depression and
       sleep disorder who could no longer work the night-shift to a day
       shift position outside her department. The ADA may require an
       employer to reassign a disabled employee to a position for which
       she is otherwise qualified, not simply to a position within her
       department or to one that she previously requested transfer.

k. Reassignment not required if it involves termination of other
employees or violates collectively-bargained rights of other employees or
supercedes established policy. (See also Section IV.D.1., infra, regarding
undue hardship and collective bargaining.)

i.     U.S. Airways, Inc. v. Robert Barnett, 122 S. Ct. 1516 (Sup. Ct.
       2002). An airline was entitled to a rebuttable presumption that an
       injured cargo worker’s request for an accommodation that would
       require the airline to ignore its established seniority system was
       unreasonable if it conflicted with established rules for job
       assignments. Seniority systems will be sustained unless they have
       been changed so frequently that employees have no reasonable
       expectations or the plans include too many exceptions. In short, the
       employer must ignore its seniority system if the plaintiff has
       demonstrated that it has done so in the past for other employees.
ii.    Baulos v. Roadway Express, Inc., 139 F.3d 1147, 7 A.D. Cases
       1753 (7th Cir. 1998). Employer and union were not required to
       waive collectively bargained seniority rights in order to allow
       drivers with sleep disorders to obtain assignments which did not
       require them to sleep in moving vehicles.
iii.   Willis v. Pacific Maritime Ass'n, 162 F.3d 561, 566 (9th Cir.
       1998). Injured longshoremen were not entitled to be transferred to
       position for which they had insufficient seniority to bid under
       collectively bargained job assignment system. An accommodation


                        72
        is per se unreasonable where it requires an employer to violate a
        bona fide collectively bargained seniority system. This per se rule
        is appropriate in light of the risk of violating the NLRA which
        would accrue to employers if they were required to waive
        collectively bargained rights under any circumstances.
iv.     Feliciano v. State of Rhode Island, 160 F.3d 780 (1st Cir. 1998).
        Institutional Attendant with back injury who could not lift more
        than 30 pounds was not entitled to transfer to vacant community
        living position for which she lacked the seniority to bid under a
        collective bargaining agreement. State Agency was not required to
        reasonably accommodate institutional attendant by reassigning her
        to vacant position as community aide, when a collective bargaining
        agreement required her to bid for the position, and the bidding was
        dependant on seniority.
v.      Barnett v. U.S. Air, Inc., 157 F.3d 744 (9th Cir. 1998). Airline was
        not required to waive seniority system in order to transfer customer
        service agent with back injury into swing-shift mail room position.
        Although the seniority system was not collectively bargained, it
        was nevertheless well-established, not created as a pretext for
        discrimination, and relied upon by employees to determine their
        job transfer rights. Waiver of seniority was therefore an
        unreasonable accommodation as a matter of law.
vi.     Foreman v. Babcock & Wilcox Co., 113 F.3d 1402 (5th Cir. 1997).
        Factory was not required to reassign expeditor who could not
        perform the essential functions of his job due to his pacemaker,
        because there were no vacant positions available and he did not
        have the requisite seniority for the positions he desired under the
        collective bargaining agreement. Even if there were no collective
        bargaining agreement in place, the factory would not be required to
        give the expeditor priority in hiring over non-disabled individuals.
        The ADA does not require affirmative action in favor of
        individuals with disabilities.
vii.    Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997). ADA and the
        Rehabilitation Act do not require employers to take actions that
        would infringe on seniority or other contractual rights of workers
        under a collective bargaining agreement; thus, employer was not
        required to exempt toll collector with back injuries from "forced
        overtime" where such accommodation would subject other
        employees with greater seniority to involuntary overtime work.
viii.   Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997). Toll collector with
        back injury could not require state transit authority to exempt her
        from "forced overtime" on a permanent basis as reasonable
        accommodation even though union had agreed to a temporary
        exemption from such overtime work. Temporary waiver of
        collective bargaining agreement by union to accommodate


                         73
       individual with disability does not signal acquiescence to indefinite
       or permanent waiver of agreement.
ix.    Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997). Collective
       bargaining unit and employer may modify collective bargaining
       agreement by mutual consent in order to make reasonable
       accommodation for qualified individual with disability.
x.     Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7th Cir. 1996). Coal
       mine roof bolter with work-related shoulder injury who could no
       longer do heavy lifting, overhead work, and pushing and pulling
       did not have to be reassigned to a light-duty vacant position where
       such accommodation would violate the seniority provisions of a
       collective bargaining agreement.
xi.    Eckles v. Consol. Rail Corp., 94 F.3d 1041 (7th Cir. 1996).
       Railroad and union were not required to accommodate epileptic
       yardmaster by reassigning him in violation of seniority rights of
       other union members, or protect him from being "bumped" from
       his current position by a more senior union member. Although
       covered entities (rail and union) cannot avoid their ADA duties by
       contractual manipulation, the ADA does not require unions to
       accommodate disabled individuals by sacrificing the collectively
       bargained, bona fide seniority rights of other employees.

l. Reassignment not required where it would violate legitimate business
policy of employer.

i.     U.S. Airways, Inc. v. Robert Barnett, 122 S. Ct. 1516 (Sup. Ct.
       2002). An airline was entitled to a rebuttable presumption that an
       injured cargo worker’s request for an accommodation that would
       require the airline to ignore its established seniority system was
       unreasonable if it conflicted with established rules for job
       assignments. Seniority systems will be sustained unless they have
       been changed so frequently that employees have no reasonable
       expectations or the plans include too many exceptions. In short, the
       employer must ignore its seniority system if the plaintiff has
       demonstrated that it has done so in the past for other employees.
ii.    EEOC v. Sara Lee Corporation 237 F.3d 349 (4th Cir. 2001)
       Employer did not have to disregard its established seniority policy
       to accommodate an epileptic auto packing machine operator.
       Plaintiff had requested her employer bypass employees twenty
       years her senior in order to accommodate her request to remain on
       first shift. The ADA does not require employers to disrupt the
       operation of a defensible and non-discriminatory company policy
       in order to provide a reasonable accommodation. To mandate that
       a company exempt workers from this long-standing policy would
       disrupt the legitimate expectations of long-time employees. It


                        74
       could potentially expose the company to the threat of lawsuits by
       disgruntled employees who were placed behind employees in need
       of accommodation. The ADA does not require employers to
       penalize employees free from disability in order to vindicate the
       rights of disabled workers.
iii.   Burch v. City of Nacogdoches, 174 F.3d 615 (5th Cir. 1999). City
       was not required to create light-duty position to accommodate
       lifting and carrying restrictions of firefighter with back injury. Due
       to small size of city fire department, no permanent light duty
       positions existed, and the ADA does not require an employer to
       create an entirely new position.
iv.    Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667 (7th Cir.
       1998). Automobile factory was not required to transfer disabled
       employees to jobs for which they were not qualified as reasonable
       accommodation for their conditions. An employer is not required
       under the ADA to abandon its legitimate, non-discriminatory
       policies defining job qualifications, prerequisites and entitlements
       to internal transfers. These include rejection of employees who are
       underqualified or overqualified for a particular job, preference for
       full- time over part-time employees for vacant full-time positions,
       "up or out" policies under which employees who do not advance at
       a set rate are terminated, and "non-demotion" policies under which
       employees are not eligible for return to lower positions.
v.     Duckett v. Dunlop Tire Corp., 120 F.3d 1222 (11th Cir. 1997).
       Employer was not required to offer vacant production position to
       salaried employee with high blood pressure who claimed to be
       unable to work in a supervisory position, where employer had
       business policy not to "roll back" salaried employees to production
       positions.
vi.    Concern: The EEOC contends that employers must reassign
       employees with disabilities, when needed as a reasonable
       accommodation, regardless of any employer policy normally
       prohibiting such transfers. EEOC Reas. Accom. Guidance,
       Question 26.

m. Simple existence of company policy is not valid reason for denial of
reassignment.

i.     Dilley v. SuperValu, Inc., 296 F.3d 958 296 (2002). Employer
       unlawfully denied truck driver with back problems a request for
       accommodation to a driving position with less than 60 pounds of
       lifting. The employer's argument that the seniority system under a
       collective bargaining agreement could be violated if the employee
       retained a position to which a more senior employee would be
       entitled, was speculative. The employee was one of the most senior


                         75
       truck drivers and thus the jury was correct in concluding that his
       displacement by a more senior driver was remote.
ii.    Gile v. United Airlines, 213 F.3d 365 (7th Cir. 2000). An airline
       employee’s failure to participate in the company’s procedural
       bidding process was not a valid reason for the airline’s refusal to
       transfer a night-shift employee that suffered from depression to a
       daytime position. Although the ADA does not require an
       employer to abandon its legitimate policies regarding transfers, the
       airline cannot claim that its bidding process was too important to
       bypass when daytime positions remained vacant after the bidding
       process.

n. Reassignment should be considered in determining whether an
employee is otherwise qualified.

i.     Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998).
       Issue of fact existed as to whether hospital orderly with heart
       problems was otherwise qualified within the meaning of the ADA
       when he claimed that he would be able to perform other available
       jobs within the hospital. An employee seeking reassignment is
       otherwise qualified if, with or without reasonable accommodation,
       he can perform the duties of the position to which he seeks to be
       reassigned.
ii.    Woodman v. Runyon, 132 F.3d 1330 (10th Cir. 1997). Issue of fact
       existed as to whether postal clerk with thoracic outlet syndrome,
       which limited her ability to work with her left arm, was otherwise
       qualified under the Rehabilitation Act. An employee of a Federal
       agency, which has a greater duty to reasonably accommodate than
       a private employer, is otherwise qualified if she can work with
       reasonable accommodation, including reasonable reassignment.
       Thus, she is otherwise qualified if she is able to perform any job to
       which she could reasonably be reassigned, rather than her original
       position alone.
iii.   *Shiring v. Runyon, 90 F.3d 827 (3d Cir. 1996). Postal carrier with
       foot condition which prevented excessive walking was not
       otherwise qualified because he failed to show that there was a
       vacant, funded, equivalent position whose essential duties he could
       perform, with or without reasonable accommodations. Although
       possible reassignment should be considered in determining
       whether an individual is otherwise qualified, the burden is on the
       employee to show that such a position exists.




                        76
3. Reassignment to lower level position. An employer may reassign an
individual to a lower graded position if there are no accommodations that would
enable the employee to remain in the current position and there are no vacant
equivalent positions for which the individual is qualified with or without
reasonable accommodation. The employer may lower the disabled employee's
salary to that of the lower position (if all reassigned employees receive a
reduction). Appendix to 29 C.F.R. § 1630.2(o).

       i.     Mays v. Prinicipi, 301 F.3d 866 (7th Cir. 2002). VA Hospital
              provided reasonable accommodation by reassigning nurse with
              back problems to a lower-paying clerical position. With the
              workers' compensation that she received for her injury, she
              received the same net after-tax salary as she had earned as a nurse.
              The position was not a perfect substitute, as it had fewer fringe
              benefits and provided fewer career advantages by not drawing on
              her nursing skills. However, under the Rehabilitation Act, an
              employer is not required to provide the accommodation for a
              disabled employee that is ideal from the employee's standpoint,
              only one that is reasonable in terms of costs and benefits.
       ii.    Allen v. Rapides Parish Sch. Bd., 204 F.3d 619 (5th Cir. 2000). A
              school’s refusal to transfer a librarian to a position that would
              muffle the effects of tinnitus, which caused him to hear a
              continuous loud ringing in his ears, does not constitute
              discrimination under the ADA. The Act does not require an
              employer to give an employee with a disability his job of choice,
              especially when there are qualified individuals who desire the
              same position. Even if the school=s transferring him to a lower
              paying librarian position rather than his requested elementary
              school principal position was unfair, it is not a discriminatory
              action under the ADA.
       iii.   Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8th Cir.
              1999). Issue of fact existed as to whether restaurant failed to
              accommodate injured manager who was unable to work more than
              three consecutive days by not transferring her to vacant shift
              manager position. Employer did not present any evidence that shift
              manager position would violate plaintiff's work restrictions by
              requiring her to work more than three consecutive days, and issue
              of fact thus existed as to whether she was qualified for this
              alternative job.
       iv.    Altman v. N. Y. City Health and Hosps. Corp., 100 F.3d 1054 (2d
              Cir. 1996). Hospital properly accommodated alcoholic Chief of
              Internal Medicine who was intoxicated while treating a patient by
              demoting him to attending physician and reducing his salary to a
              level which would still have him earning more than the other
              attending physicians. The hospital was entitled to protect itself



                               77
              against the risk of a return of the problem while dealing with the
              plaintiff on some sensible basis.
       v.     *Guice-Mills v. Derwinski, 967 F.2d 794 (2d Cir. 1992). A nurse
              whose condition of depression required medication that did not
              allow her to meet the morning schedule of the head nurse position
              was instead offered the position of a staff nurse at the requested
              hours without loss of grade or salary. Such transfer to an
              alternative position that did not require a significant reduction in
              pay or benefits is a reasonable accommodation as a matter of law.

4. Reassignment to undesirable positions prohibited. Employers may not
discriminate against employees with a disability by reassigning them to
undesirable positions or to designated offices or facilities. Appendix 29 C.F.R. §
1630.2(o).

       i.     Dilley v. SuperValu, Inc., 296 F.3d 958 296 (2002). Employer’s
              offered accommodation to truck driver who due to back problems
              could not lift more than 60- pounds was unreasonable. One of the
              offered accommodations was a demotion to a lesser paid position
              and the other was non-vacant. Thus the jury properly found that the
              employer should have considered other equivalent driving
              positions within his lifting restrictions before considering a
              demotion.
       ii.    Norville v. Staten Island Univ. Hosp., 196 F.3d 89 (2d Cir. 1999).
              Hospital failed to reasonably accommodate nurse with spinal
              injury that precluded her from heavy lifting, stretching or bending
              when it refused to consider her for vacant position for which she
              was qualified and which had equivalent pay and benefits, and
              offered her a lower-level position instead. If a vacant position with
              equivalent pay and benefits exists that meets a disabled employee’s
              physical restrictions, employers are required to consider the
              disabled employee for that position before considering or offering
              any lower-level job.
       iii.   Keever v. City of Middletown, 145 F.3d 809 (6th Cir. 1998).
              Reassignment of police officer with back, leg and neck injuries to
              desk job with equal pay and benefits was reasonable
              accommodation. A job transfer with no changes in pay, benefits or
              work hours does not constitute a transfer to an undesirable
              position.
       iv.    Doe v. DeKalb School District, 145 F.3d 1441 (11th Cir. 1998).
              Transfer of HIV- positive teacher from special education class to
              regular classroom was not an adverse employment action. Position
              to which plaintiff was transferred had equal pay, benefits and
              professional standing, and a reasonable person would not have
              regarded it as undesirable.


                                78
5. Promotion is not a required accommodation. S. Rep.31-32; H. Lab. Rep. at 63;
Appendix to 29 C.F.R. § 1630.2 (o).

       i.     Martin v. Lockheed Martin Missiles & Space Co., 187 F.3d 648
              (9th Cir. 1999). Clerical worker with back injury which made her
              unable to lift more than 10 pounds was not entitled to be
              transferred into vacant salaried position as reasonable
              accommodation. The transfer requested by plaintiff would
              constitute a promotion, and promotion is not an accommodation
              required by the ADA.
       ii.    Milton v. Scrivener, Inc., 53 F.3d 1118 (10th Cir. 1995). Grocery
              order selectors who could not keep up with new, faster production
              standards because of their disability were not entitled to be
              transferred to a position which they could perform if the transfer
              would be a promotion.

6. Reassignment is not available to applicants. S. Rep. at 32; Appendix to 29
C.F.R. § 1630.2(o).

       i.     Szmaj v. AT&T, 291 F.3d 955 (7th Cir. 2002). Employer had no
              duty to accommodate an employee suffering from congenital
              nystagmus by transferring him to a position that required less
              reading, because such a condition was not a disability under the
              ADA. Although the plaintiff’s condition precluded him from
              holding a job that required he spend more than 50-percent of his
              time reading, such a restriction did not rise to the level of a
              disability, because the ability to read all day long is not a major life
              activity. Further, although the plaintiff could not read at all
              without some discomfort, and the ability to read is a major life
              activity, discomfort is not synonymous with disability. His
              discomfort was clearly not excruciating, else he would not have
              worked for many years in positions that required he spend much of
              the workday reading.

7. Same transfer treatment as offered to non-disabled employees. If an employer
regularly transfers non-disabled employees whose jobs have been eliminated from
one location to another, it will likely be required to make such transfers as
accommodations for individuals with a disability.

       a. Denial of transfer offered to others created an issue of fact.

       i.     Leslie v. St. Vincent New Hope, Inc., 916 F. Supp. 879 (S.D. Ind.
              1996). Resident attendant with a back injury established a genuine
              issue of material fact that her employer failed to reasonably
              accommodate her by showing: (1) after each doctor's visit, she


                                79
              requested and was denied a transfer to a light-duty position; (2) she
              was clearly not qualified for the only position offered to her; (3)
              resident attendants frequently moved from unit to unit; (4) on at
              least one occasion, she was denied a transfer when she knew
              another position was available; and (5) another resident attendant
              with similar physical restrictions was provided a temporary
              assignment to accommodate her limitations.
       ii.    Howell v. Michelin Tire Corp., 860 F. Supp. 1488 (M.D. Ala.
              1994). Tire manufacturer's reassignment of two employees to
              longer light-duty positions and its hiring of another employee for
              an available position created a genuine fact for the jury to
              determine whether it had the ability to a find new, less strenuous
              position for a machine operator with a congenital hip disability.
              (Jury decided case in favor of defendant.)

       b. Transfer to position with same negative characteristics as non-disabled
       employees is an adequate accommodation.

       i.     Webster et al v. Henderson, 32 Fed. Appx. 36 (4th Cir. 2002).
              Light duty postal workers who were transferred to an undesirable
              work area, did not establish that their employer failed to provide a
              reasonable accommodation under the Rehabilitation Act. Plaintiffs
              complained that the offered accommodation was unreasonable
              because it required them to work the night shift, the working space
              and conditions were not optimal, and they had limited access to
              parking spaces. Nonetheless, the accommodation was reasonable
              because the work assignments were within the plaintiffs’ medical
              restrictions, and other full duty postal workers also worked night
              shifts and were not guaranteed parking. The employer was not
              required to provide the requested accommodation, only a
              reasonable one.
8. Accommodation must relate to disability. The reasonable accommodation
obligation applies only to accommodations that reduce barriers to employment
related to a person's disability; it does not apply to accommodations that a
disabled person may request for some other reason. For example: Reassignment is
one type of accommodation that may be required under the ADA. If an employee
whose job requires driving loses her sight, reassignment to a vacant position that
does not require driving would be a reasonable accommodation, if the employee
is qualified for that position with or without an accommodation. However, a blind
computer operator working at an employer's Michigan facility would not be
entitled to be reassigned to a facility in Florida, even though he prefers the
warmer climate because this accommodation is not needed because of the
employee's disability. TAM, § 3.4.

       i.     Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999). Jury could find
              that city’s blanket policy of refusing to transfer law enforcement


                                80
             officers to non-law-enforcement civil service positions violated the
             ADA. Although plaintiffs could still compete for such positions
             on the same footing as members of the public, the ADA requires
             more than simply allowing disabled persons to compete for
             transfer on the same basis as the rest of the world. Thus, the ADA
             required the city to consider plaintiffs for open civil service
             positions for which they were qualified.
      ii.    Seth v. City of Seattle, 179 F.3d 1333 (9th Cir. 1999). City
             reasonably accommodated law enforcement officer who requested
             transfer to clerical job by administering a typing test in an attempt
             to place him in a dispatcher position, arranging an interview with a
             potential private employer, and sending him circulars about other
             potential jobs within the civil service. The city’s efforts to
             accommodate plaintiff’s request for job transfer were more than
             sufficient to meet its obligations under the law.
      iii.   Hopkins v. Electronic Data Sys. Corp., 196 F.3d 655 (6th Cir.
             1999).     Manufacturer did not discriminate against product
             development specialist with attention deficit disorder by failing to
             find a new position for him after his own job was eliminated.
             Although another similarly situated employee whose position was
             eliminated did manage to find another job within the company, he
             did so purely through his own resourcefulness and not due to any
             assistance from the employer. Thus, plaintiff was not treated
             differently from non-disabled employees in his position.
      iv.    *Buckingham v. United States Postal Service, 998 F.2d 735 (9th
             Cir. 1993). The Post Office refused to transfer a postal worker in
             Mississippi with AIDS to the same position in Los Angeles, where
             he claimed that he could obtain better treatment for his handicap.
             The court held that the post office could not deny such a request as
             per se unreasonable and that the employer has a duty under the
             Rehabilitation Act to gather sufficient information from the
             employee and the experts as needed to determine what
             accommodations are necessary.

9. Transfer to provide a disabled person with opportunity to work with new
coworkers or under a new manager is not required by the ADA.

      i.     Barrett v. Lucent Technologies, Inc., 36 Fed. Appx. 835 (6th Cir.
             2002). Failure to transfer plaintiff, a lupus sufferer, to another
             supervisor was not an adverse employment action. A refusal to
             grant a change requested by an employee is not an adverse
             employment action unless the employee has a right to the
             requested change by law or through the terms and conditions of his
             employment. Up until she was placed on probation, plaintiff was
             free to apply for a new position within the defendant company. She
             provided no evidence, however, that she applied for and was


                              81
       denied a transfer to a position for which she was qualified or
       otherwise entitled. Once plaintiff was placed on probation, she
       could not apply for a transfer within the company during the term
       of her probation. Plaintiff did not show that her probation, which
       included the prohibition against transfer, was imposed as a result
       of any protected activity. Thus, plaintiff offered no evidence that
       she had a right, either legally or under the company's policies and
       practices, to a transfer. The failure to transfer her to a new
       supervisor upon her request, therefore, does not constitute an
       adverse employment action and cannot support a claim of
       retaliation.
ii.    Coulson v. The Goodyear Tire & Rubber Co., 31 Fed. Appx. 851
       (6th Cir. 2002). Employer did not have to transfer processing
       technician who suffered from major depression and accompanying
       symptoms, which made him prone to suicide and caused him to
       issue threats to coworkers, to a position in a different department in
       which he would not feel uncomfortable with his coworkers. Both
       the Employer and the Plantiff’s doctors had agreed that he was
       capable of performing his job without an accommodation and
       transfer must only be considered when a disabled individual cannot
       perform the essential functions of his job with or without
       reasonable accommodation.
iii.   Donna Braunling v. Countrywide Home Lans Inc. 220 F.3d 1154 (
       9th Cir. 2000) Underwriter with MS could not maintain reasonable
       accommodation claim under ADA based on employer's failure to
       transfer her to another supervisor, since employee was having
       serious difficulties with her job duties even before current
       supervisor was alleged to have learned of employee's MS, and
       transfer to another supervisor would not have affected employee's
       inadequate job performance.
iv.    Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir. 1998).
       Technician with depression and anxiety was not entitled to be
       reassigned in order to remove him from stressful relationship with
       co-worker. An employee is not entitled to dictate the conditions of
       his employment by choosing the individuals with whom he will
       work.
v.     Weiler v. Household Fin. Corp., 101 F.3d 519 (7th Cir. 1996).
       Employee who suffered from depression and anxiety after having a
       heated confrontation with her supervisor was not entitled to an
       immediate transfer to another position as a reasonable
       accommodation. The ADA does not require an employer to
       transfer an employee to another supervisor or to transfer the
       supervisor to a different job.
vi.    Lewis v. Zilog, Inc., 908 F. Supp. 931 (N.D. Ga. 1995). Sales
       representative with bipolar mood disorder, who had serious


                         82
               conflicts with coworkers, was not entitled to a transfer to
               California as a reasonable accommodation because transferring
               disabled individuals solely to allow them to work in a different
               setting or under a different supervisor is not an accommodation
               reasonably to be expected.
       vii.    The EEOC recognizes that an employer does not have to change a
               person's manager as a reasonable accommodation, but takes the
               controversial position that the manger may have to change his
               method of supervision. EEOC Reas. Accom. Guidance, Question
               32.

10. Inability to handle stress or work under supervision found not to be sufficient
grounds for transfer.

       i.      Kennedy v. Dresser Rand Co., 193 F.3d 120 (2d Cir. 1999).
               Employer was not required by the ADA to accommodate
               depressed nurse by reassigning her to new supervisor and barring
               her previous supervisor from personal contact with her. Although
               requests for reasonable accommodation must always be evaluated
               on a case-by-case basis, a presumption exists that a request for a
               different supervisor is unreasonable. Moreover, plaintiff’s request
               to be assigned to a different supervisor would have led to
               organizational difficulties, and her request to be relieved from
               personal contact with her current supervisor would prevent him
               from exercising his company-wide responsibilities.
       ii.     Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir. 1998).
               Employer was not required to transfer technician with depression
               and anxiety in order to remove him from stressful contact with co-
               worker. This accommodation is unreasonable because employer
               could never achieve more than temporary compliance, due to
               variables beyond its control that could increase plaintiff's stress
               level. Moreover, employer cannot reasonably be required to
               transfer plaintiff whenever he became "stressed out" by a coworker
               or supervisor.
       iii.    *Gonzagowski v. Widnall, 115 F.3d 744 (10th Cir. 1997). Air
               Force was not required to transfer a computer programmer with
               anxiety disorder to a position that did not involve a substantial
               amount of stress and criticism. While specific stressors in a work
               environment may in some cases be legitimate targets of
               accommodation, it is unreasonable to require an employer to create
               a work environment free of stress and criticism.
       iv.     *Pesterfield v. Tennessee Valley Auth., 941 F.2d 437 (6th Cir.
               1991). An employee suffering from an emotional disability that
               rendered him unable to tolerate any stress or criticism need not be
               accommodated by assigning him to a stress-free job.


                                83
      11. Reassignment not required if it would result in a direct threat to others.

             i.      Donahue v. Consolidated Rail Corporation, 224 F.3d 226 (3rd Cir.,
                     2000) Rail Road company did not have to transfer a former train
                     conductor with ventricular tachycardia to vacant train dispatcher
                     position because he would have created a significant risk of harm
                     to others. The train dispatcher position required alertness and
                     readiness to communicate with trains quickly as soon as an
                     emergency arises--keeping other trains from entering the area and
                     getting emergency crews to the scene. The ventricular tachycardia
                     caused the plaintiff to pass out unexpectedly and thus could result
                     in railroad employees and others to be injured or killed.

      12. Reassignment not required on cases in which employer must create a new
      position.

             i.      Turner v. Turris Coal Company, 37 Fed. Appx. 798 (7th Cir. 2002)
                     Mining company had no duty to accommodate an employee,
                     disabled by an on-the-job injury, by creating a new position for the
                     individual which met the physical restrictions imposed by his
                     doctor. Although the plaintiff had once filled such a position, that
                     work had since been outsourced and the position no longer existed.
                     The ADA does not require an employer to create a new position
                     solely to accommodate its employees’ changed circumstances.
             ii.     Hoskins v. Oakland County Sheriff's Department, 227 F.3d 719(
                     6th Cir., 2000) Sheriff’s department did not have to permanently
                     reassign a deputy sheriff to a rotating, relief position to avoid
                     contact with inmates--an essential function she could not perform
                     due to the injuries she suffered when a horse fell on top of her.
                     Assigning the plaintiff permanently to a control booth position that
                     was used to give officers a break from patrolling the cell block
                     essentially was creating a new position, and therefore was not
                     required under the ADA. A reasonable accommodation does not
                     include turning a rotating or relief position into a permanent
                     position. Furthermore, sheriff’s department did not violate the
                     ADA by failing to transfer her to a position that had not been in
                     existence at the time she requested for an accommodation.
                     Although an employer may be required to reassign an individual to
                     a position that is currently unavailable but that will become vacant
                     within a reasonable amount of time, the new position was created
                     well over a year after the sheriff’s department became aware of the
                     plaintiff's disability.
I. An Interactive Process For Determining Reasonable Accommodation.




                                       84
1. Four part process. In cases in which the accommodation is not obvious to
either the employer or the qualified individual with a disability, the employer
should consider an informal, four-part decision-making process. H. Lab. Rep. at
65-66; S. Rep. at 35.; Appendix to 29 C.F.R. § 1630.9.

       a. Determine the purpose and the essential functions of the particular job
       involved;

       b. Consult with the individual with a disability to find out his or her
       specific physical or mental abilities and limitations as they relate to the
       essential job functions. Identify the barriers to job performance and assess
       how these barriers could be overcome with an accommodation;

       c. In consultation with the individual, identify potential accommodations
       and assess how effective each would be in enabling the individual to
       perform essential job functions;

       d. If there are several effective accommodations that would provide an
       equal employment opportunity, consider the preference of the individual
       with a disability and select the accommodation that best serves the needs
       of the individual and the employer.

       i.     Panto v. Palmer Dialysis Ctr./Total Renal Care, 2003 U.S. Dist.
              LEXIS 5663 (E.D. Pa. 2003). Employee suffering from rheumatoid
              arthritis and systemic lupus raised an issue of fact that her
              employer did not earnestly engage in the interactive process as
              required by the ADA. Specifically, the plaintiff argued that the
              employer did not accommodate her when it placed her on a six-
              month probationary program where she would be terminated as
              soon as she missed one day of work.
       ii.    EEOC v. Dollar General Corp., No. 1:01CV918 (M.D.N.C. 2003).
              Moderately mentally retarded store clerk raised an issue of fact as
              to whether the store failed to accommodate her disability. The
              employer failed to follow its affirmative obligation to engage in the
              interactive process to determine what, if any, reasonable
              accommodation would have enabled her to perform any essential
              functions that she was allegedly failing to perform. While the
              employer argued that a job coach could only serve as a temporary
              accommodation, the EEOC countered that it was "inconceivable"
              that a helper could not be a permanent accommodation, comparing
              such a person to a sign-language interpreter or a reader. Given the
              short period of time she was employed, there were still unanswered
              questions about whether the job coach was temporary and how
              much of her work was being done by the coach.




                                85
iii.   Mays v. Prinicipi, 301 F.3d 866 (7th Cir. 2002). VA Hospital had
       the burden of demonstrating that no alternative accommodation
       existed when it failed to engage in the interactive process with a
       nurse with back problems. An employer that simply assigns an
       accommodation to a disabled individual rather than engage in the
       interactive process shifts the burden of production concerning the
       availability of a reasonable accommodation from the employee to
       the employer.
iv.    Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (9th
       Cir. 2001). Employer failed to engage in the interactive process
       when it denied request for leave of absence from a medical
       transcriptionist with obsessive-compulsive disorder even if it
       already had unsuccessfully attempted to accommodate her with a
       flexible start and stop time. The employer's obligation to engage in
       the interactive process extends beyond the first attempt at
       accommodation and continues when the employee asks for a
       different accommodation or where the employer is aware that the
       initial accommodation is failing and further accommodation is
       needed. Even if plaintiff had turned down an earlier leave of
       absence offer by the employer in favor of a flexible start-time
       arrangement, her attempt to perform her job functions by means of
       a less drastic accommodation did not forfeit her right to a more
       substantial one upon the failure of the initial effort.
v.     Templeton v. Neodata Services, Inc., 162 F.3d 617, 619 (10th Cir.
       1998). Computer company was not required to accommodate
       employee who failed to provide medical certification of her
       condition upon request. Plaintiff's failure to provide certification
       rendered her responsible for the breakdown in the interactive
       accommodation process.
vi.    Barnett v. U.S. Air, Inc., 157 F.3d 744 (9th Cir. 1998). Employer's
       alleged failure to engage in an interactive process to determine
       reasonable accommodation does not support a cause of action
       under the ADA independent of alleged failure to accommodate.
       The ADA statute and regulations do not establish an independent
       duty to engage in the interactive process. Thus, an employee
       cannot base an ADA claim on failure to engage in the interactive
       process unless such failure results in the employer not providing an
       available reasonable accommodation. Employers are still advised
       to engage in the interactive process, however, as failure to engage
       in that process places an employer at peril due to the increased risk
       of failure to arrive at a reasonable accommodation.
vii.   Soto-Ocasio v. Federal Express Corp., 150 F.3d 14 (1st Cir. 1998).
       Package company was not required to consult with data entry clerk
       regarding reasonable accommodation where her cervical injuries
       prevented her from lifting more than 7 pounds or sitting for more
       than 45 minutes at a time. Since no reasonable individual could


                        86
        conclude that plaintiff was otherwise qualified for her position, her
        employer was under no duty to engage in an interactive process to
        determine reasonable accommodation.
viii.   *Mengine v. Runyon, 114 F.3d 415 (3d Cir. 1997). Post office did
        not fail to accommodate letter carrier, who could not push, pull or
        lift more than ten pounds following hip surgery, by not identifying
        a permanent light-duty position for which he was qualified. Both
        parties exchanged many letters in their mutual attempt to find a
        position for reassignment, the post office sent the carrier multiple
        job descriptions that he declined and it did not act to impede his
        search for a suitable position.
ix.     Feliberty v. Kemper Corp., 98 F.3d 274 (7th Cir. 1996). Insurance
        company medical director with carpal tunnel syndrome, which
        rendered him unable to use his office's keyboard, stated a genuine
        issue of material fact as to whether the employer failed to provide a
        reasonable accommodation. An employer is not relieved of its
        responsibility to identify a reasonable accommodation just because
        the employee has unusual expertise. In addition, reasonableness
        does depend on a good faith effort to assess employee's needs and
        respond to them.
x.      Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130 (7th Cir.
        1996). University did not fail to reasonably accommodate a
        secretary with arthritis and depression because the breakdown in
        the interactive process of determining what reasonable
        accommodations were necessary was caused by the employee, not
        the university. The breakdown occurred when the plaintiff refused
        to sign a release so that the university could obtain her medical
        records in an effort to determine what accommodations would be
        needed. In addition, the evidence showed that the university
        provided specific accommodations whenever the plaintiff asked for
        them.

e. Employer not liable for failing to engage in the interactive process,
where the accommodation is transfer and there is no vacant position the
employee can perform.

i.      Mays v. Prinicipi, 301 F.3d 866 (7th Cir. 2002). Veterans
        Administration Hospital did not fail to engage in the interactive
        process with a nurse restricted to light duty when, rather than
        waiting for her to propose something, offered her one. The VA
        simply assigned her to a clerical position instead of engaging in a
        discussion of the exact position she preferred to have. Failure to
        engage in the interactive process is not a violation of the
        Rehabilitation Act if no reasonable accommodation other than that
        offered by the employer is possible. In this case, the hospital did


                         87
       not have any light duty nursing jobs and the nurse was not the most
       qualified person for the administrative nursing job that required no
       patient contact.
ii.    Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir.
       2001) Employer failed to engage in the interactive process when it
       refused to assist in identifying possible accommodations for a
       partially deaf warehouse worker who applied to become a Package
       Car Driver. The employer’s defense that such a failure should be
       excused because there would have been no reasonable
       accommodation is contradicted by the evidence that
       accommodations were available, such as hiring the plaintiff as a
       swing driver, and ensuring that she only drive vehicles weighing
       less than 10,000 pounds.
iii.   Ozlowski v. Henderson, 237 F.3d 837 (7th Cir. 2001). Fact that
       manager in the Postal Service failed to engage in the interactive
       process to determine proper position to transfer postal worker with
       degenerative spinal disease did not constitute a failure to
       accommodate because the plaintiff was not qualified for the vacant
       positions available. In addition, the plaintiff failed to identify any
       vacant positions he was qualified to perform. Rather than finding
       an employer’s failure to engage in the interactive process
       constitutes a failure to accommodate, it must first be determined
       whether there is a genuine issue of material fact regarding the
       availability of a vacant position to accommodate plaintiff. If there
       were such a position, only then should it be considered whether the
       failure to provide that accommodation was due to a breakdown in
       the interactive process.
iv.    Frazier v. Simmons, Secretary of the Department of Corrections.
       254 F.3d 1247 (10th Cir. 2001).        Investigator with multiple
       sclerosis’ failure to identify any positions whose essential
       functions he could perform with or without accommodation,
       released the Department of Corrections from a duty to engage in
       the interactive process. The inability to run or engage in violent
       confrontation, with or without a reasonable accommodation,
       precluded him from being considered as a qualified individual for
       any of the available positions. In addition, job restructuring by
       eliminating an essential function from the job is not a reasonable
       accommodation as a matter of law.
v.     Johnson v. Otter Tail County, Minnesota,2001 WL 664217 (8th
       Cir. 2001). County did not have to accommodate worker’s request
       for reinstatement to a vacant position where her request for such an
       accommodation post-dated her termination and where worker was
       not qualified. Moreover, plaintiff did not present any evidence of
       work that she could have performed prior to her termination, given
       her disability status, and for which she was qualified, removing



                         88
              any liability from the employer for not engaging in the interactive
              process in any case.
       vi.    Donahue v. Consolidated Rail Corporation, 224 F.3d 226 (3rd Cir.,
              2000)Rail road company that failed to engage in the interactive
              process with former train conductor, whose heart condition caused
              unexpected loss of consciousness, was entitled to summary
              judgment because the plaintiff had not identified any vacant
              position that he could perform without creating a significant risk of
              harm to others. Plaintiff in a disability discrimination case who
              claims that the defendant engaged in discrimination by failing to
              make a reasonable accommodation cannot recover without
              showing that a reasonable accommodation is possible. Thus, where
              a plaintiff cannot demonstrate reasonable accommodation, the
              employer's lack of investigation into reasonable accommodation is
              unimportant.

2. In cases in which the employer did not provide an accommodation, the
employer can use its engagement in the interactive process as evidence of good
faith effort to accommodate and thus avoid having to pay punitive and certain
kinds of compensatory damages. EEOC Reas. Accom. Guidance, Footnote 22.

       i.     Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944 (8th Cir.
              1999). Issue of fact existed as to whether restaurant failed to act in
              good faith by not engaging in an interactive process with injured
              manager who was unable to work for more than three consecutive
              days to determine whether reasonable accommodation existed.
              Although no independent duty to engage in the interactive process
              exists, failure to do so is evidence of employer's lack of good faith,
              and evidence established that employer failed to discuss vacant
              alternative position with plaintiff despite her written request for
              accommodation. Moreover, even though plaintiff did not
              specifically request transfer, employer has obligation to take the
              initiative in meeting with employee and exploring possible
              accommodations.

3. Employer does not have to engage in the interactive process so long as it
provides a reasonable accommodation.

       i.     Rehling v. Chicago, 207 F.3d 1009 (7th Cir. 2000). City’s failure
              to discuss potential accommodations through an "interactive
              process" with a disabled police officer, who the city had attempted
              to accommodate by             offering him two positions that
              accommodated his needs, did not, in itself, constitute a violation of
              the ADA. The Act seeks to ensure that qualified individuals are
              accommodated in the workplace, not to punish employers who,
              despite their failure to engage in an interactive process, have made


                                89
              reasonable accommodations. To hold employers liable for the
              failure of an interactive process regardless of whether a reasonable
              accommodation was made would not serve the underlying
              purposes of the ADA. Instead it would elevate the ADA's
              interactive process requirement to an end in itself.

4. Consult with the qualified individual with a disability at every step of the
process. S. Rep. at 35; H. Lab. Rep. at 66.

       i.     Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080 (9th Cir. 2002).
              Applicant for meter reader position triggered the interactive
              process when he informed the employer on his application that he
              was hard of hearing and stated during his first interview that he
              would have done better with an interpreter. The employer claimed
              to have offered an interpreter, but the plaintiff declined the offer.
              An employer is liable for failing to provide a reasonable
              accommodation only where the employer bears responsibility for
              the breakdown in the interactive process. Although the company
              asked the plaintiff’s mother whether he needed an interpreter, this
              inquiry was not a direct communication with the plaintiff; and
              thus, did not satisfy the requirements of engaging in the interactive
              process. In addition, orally asking the plaintiff whether he needed
              an interpreter may not have been satisfactory, because if the
              plaintiff misunderstood the question being asked, the employer
              may have been required to ask the question in writing or through a
              sign language interpreter.
       ii.    Wilson v. Dalton, Secretary of the Navy, 24 Fed. Appx. 777 (9th
              Cir. 2001) Navy engaged in good-faith effort to accommodate
              employee who suffered from Carpal Tunnel Syndrome. The Navy
              met with the plaintiff, requested information about his conditions
              and limitations, asked him what he wanted, considered his
              requests, and offered and discussed alternatives. Furthermore, the
              Navy’s failure to provide each requested accommodation was
              caused by innocent mistakes or decisions that were reasonable
              under the circumstances.
       iii.   Lee v. Arizona Board of Regents, 25 Fed. Appx. 530 (9th Cir.
              2001). University’s conduct was sufficient for purposes of
              engaging in the interactive process with a depressed professor.
              The defendant did not delay or obstruct the process and satisfied its
              burden of communicating and exchanging essential information
              with the plaintiff.
       iv.    Barnett v. U.S. Air, Inc., 196 F.3d 979 (9th Cir. 2000) cert.
              granted. Airline failed to engage in a good faith interactive process
              with cargo handler with back problems by rejecting all three of his
              proposed reasonable accommodations and offered no practical
              alternatives. Airlines offer of a forklift to assist him in the loading


                                90
        and unloading of cargo in response to plaintiff’s proposal of a low-
        tech device was like giving him a shotgun to swat a fly or a
        Phillips head screwdriver for a flat screw. The fact that a tool
        performs a similar function doesn't make it a proper tool for a
        particular job. In addition, the airline took five months to respond
        to the plaintiff’s request for an accommodation and rejected all of
        plaintiff’s suggested accommodations and merely directed him to
        apply for any position for which he was qualified given his
        restrictions and for which he had sufficient seniority. Such delay
        and the direction to do something he was already entitled to do did
        not reflect good faith engagement in the interactive process.
v.      Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d
        1011 (8th Cir. 2000). An issue of fact remains as to whether an
        employer failed to participate in an interactive process with a
        secretary, who’s carpal tunnel syndrome permanently restricted her
        from performing keyboard functions. The plaintiff had informed
        her employer of her disability and requested assistance in locating
        an available, non-typing position within the company, but the
        human resource department failed to respond to her repeated
        requests. An employer’s failure to engage in an interactive process
        to determine whether reasonable accommodations are available is
        prima facie evidence that the employer may be acting in bad faith.
vi.     Gile v. United Airlines, 213 F.3d 365 (7th Cir. 2000). An airline’s
        refusal to help an employee suffering from depression find an
        accommodation and its suggestion that she “just stay home and
        resign” constituted a failure to engage in an interactive process to
        determine whether there were reasonable accommodations
        available. The employee had repeatedly requested a transfer from
        a night shift to daytime position to ease the sleeplessness and
        anxiety of her condition. Although the employer argued plaintiff’s
        proposed accommodation would have been ineffective, it had an
        affirmative obligation to work with her to craft a reasonable
        accommodation, if possible, that would have permitted her return
        to work.
vii.    Taylor v. Phoenixville School Dist., 184 F.3d 296 (3d Cir. 1999).
        School was on notice that bipolar teacher had disabling condition
        and might need accommodation when her son provided diagnostic
        information to her supervisor and requested accommodations for
        her. A request for accommodation may be made by a friend,
        family member, or health care provider with knowledge of the
        disabled employee’s condition. Such a request is sufficient to
        trigger the employer’s duty to engage in the interactive process.
viii.   Taylor v. Phoenixville School Dist., 184 F.3d 296 (3d Cir. 1999).
        School did not fulfill its duty to engage in interactive process
        where it did not initiate discussion of bipolar secretary's condition,
        ignored her request for transfer, and simply sat back while her


                          91
       disciplinary record continued to lengthen. An employer has a duty
       under the interactive process to investigate possible
       accommodations. Even if no accommodation is possible, it must at
       the very least communicate that fact. Thus, school had an
       obligation to investigate whether any available alternative
       positions existed and, if not, communicate that fact to plaintiff.
ix.    Loulseged v. Akzo Nobel, Inc., 178 F.3d 731 (5th Cir. 1999).
       Employer of lab technician with 10-pound lifting restriction was
       not liable for breakdown in the interactive process despite the fact
       that manager made statement which plaintiff interpreted as
       foreclosing all further discussion on possible accommodations.
       Statement made by manager was not sufficiently uncompromising
       to justify an objectively reasonable belief that further discussion
       was foreclosed; moreover, evidence showed that employer
       continued to explore alternative accommodations after statement
       was made.
x.     Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998).
       Issue of fact existed as to whether meat production plant which
       established uniform policy under which injured employees were
       evaluated by nurse, given tour of plant and informed of available
       production jobs, and placed on medical layoff failed to engage in
       the interactive process mandated by the ADA. Procedure followed
       by employer was arguably "directive" rather than individualized
       and interactive, and did not afford employees the opportunity to
       request other accommodations.
xi.    Simmerman v. Hardee's Food Systems, Inc., 118 F.3d 1578 (3d
       Cir. 1998). Fast food restaurant was not required to initiate
       discussion of reasonable accommodation with manager who was
       unable to work nights or more than 40 hours per week . If an
       employee is not otherwise qualified to perform his job, his
       employer has no duty to initiate colloquy with him concerning
       possible accommodations.
xii.   Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019 (7th Cir. 1997).
       Where blind applicant for cashier/sales associate position would be
       unable to perform essential job functions even with reasonable
       accommodation, prospective employer was not required to include
       applicant in review of "Matrix of Essential Job Functions" and
       possible reasonable accommodations prior to making hiring
       decision. Interactive process ADA foresees is not an end in itself
       but rather a means for determining what reasonable
       accommodations are available to allow a disabled individual to
       perform essential functions of position sought. Thus, where no
       reasonable accommodations are possible that would enable
       employee to perform essential functions of position, prospective
       employer is not required to include applicant in review of
       functions.


                        92
5. Application process/benefits and privileges. Employers also should apply this
process to accommodations involving the job application process and to
accommodations that enable the qualified individual with a disability to enjoy
equal benefits and privileges of employment. Appendix to 29 C.F.R. § 1630.9.

6. Employers are not liable for failing to provide an accommodation that was not
requested. S. Rep. at 34. (See III.B.2. above for cases supporting the proposition
that employers are not expected to accommodate the disability if unaware of the
need. See also VIII.A.4. below for cases in which employer's lack of knowledge
of the disability served as the basis for holding the employer not liable for
discriminatory acts).
        a. Examples:

       i.     Ballard v. Robert E. Rubin, Secretary of the Treasury, 284 F.3d
              957; (8th Cir. 2002). Complaint filed by IRS Case Manager with
              history of polio did not constitute a request for reasonable
              accommodation that triggered employer’s obligation to engage in
              the interactive process. The complaint was neither on its face nor
              in essence about reasonable accommodation. Its subject was the
              plaintiff’s allegation that his employer failed to promote him
              because of his disability, not that his employer had failed to
              accommodate his disability.
       ii.    Burke v. Southern Iowa Methodist Med. Ctr., et al. 28 Fed. Appx.
              604 (8th Cir. 2002). Registered nurse who suffered from a major
              depressive disorder related to her HIV positive status did not
              demonstrate that defendant failed to engage in the interactive
              process or failed to offer her a reasonable accommodation which
              would allow her to return to work following a disability leave.
              After plaintiff’s long-term disability benefits were discontinued,
              plaintiff declined defendant’s offer to return to work. Defendant’s
              obligation to engage in the interactive process was not triggered
              because plaintiff did not request an accommodation or ask
              defendant to engage in the interactive process after declining the
              offer of re-employment. The burden of requesting a part-time
              position or other accommodation rested with the plaintiff.
       iii.   Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d
              894 (7th Cir. 2000). Factory did not fail to accommodate tool and
              die maker by denying him a flexible work schedule when he never
              requested such an accommodation prior to his dismissal. An
              employer is not required to provide an accommodation that is not
              requested by a disabled employee.
       iv.    Jones v. United Parcel Service, 214 F.3d 402 (3rd Cir. 2000). A
              package car driver with a back injury from a slip-and-fall accident
              was not entitled to an accommodation because the employee in no
              way indicated that he wanted assistance for his disability. Because


                                93
        there was no evidence from which a request for accommodation
        could be inferred, the employer was under no legal obligation to
        engage in the interactive process of determining whether
        reasonable accommodations were available.
v.      Montoya v. State of New Mexico, 2000 U.S. App. LEXIS 2687
        (10th Cir. 2000). A company that terminated a custodian
        supervisor who suffered from major depression & posttraumatic
        stress disorder for his frequent emotional outbursts, tardiness
        problem, and inability to adhere to the company’s sick leave call in
        policy did not have to engage in an interactive process to
        determine whether reasonable accommodations were available.
        Plaintiff did not request a reasonable accommodation nor could he
        show that the company was aware of his disability.
vi.     Silva v. City of Sacramento, 203 F.3d 832 (9th Cir. 1999). City
        did not fail to reasonably accommodate mentally disabled
        applicant when it offered him accommodations to help him retake
        a civil service examination rather than simply hiring him without
        the test. An employer is not required to grant the specific
        accommodation desired by a disabled employee or applicant, and
        plaintiff presented no evidence that the test-taking
        accommodations offered were unreasonable.
vii.    Crawford v. Union Carbide Corp., 202 F.3d 257 (4th Cir. 1999).
        Lab technician with skin allergies and asthma was not entitled to
        air filter when she never requested that her employer install such a
        filter in her workplace. An employer is not required to provide an
        accommodation that is not requested.
viii.   Flemmings v. Howard University, 198 F.3d 857 (D.C. Cir. 1999).
        Administrative assistant with Meniere’s disease was not entitled to
        modified work schedule when the only accommodation she
        requested prior to termination was medical leave of absence. An
        employer is not required to provide an accommodation that a
        disabled employee did not request.
ix.     Fredenburg v. Contra Costa County Dept. of Health Services, 172
        F.3d 1176 (9th Cir. 1999). Mental health treatment specialist with
        depression and anxiety fulfilled her burden of requesting
        reasonable accommodation by asking for short-term leave of
        absence to recuperate. A temporary, short-term leave may be a
        reasonable accommodation if there is medical evidence that it will
        be effective in relieving a disabled employee's condition.
x.      Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361 (11th
        Cir. 1999). Former employee with arthritis could not base ADA
        claim on alleged failure to accommodate where she never
        requested accommodation while employed. When employer
        informed plaintiff of new requirements of her position, she did not
        request accommodation but rather simply stated that she could not


                         94
        perform those requirements and then resigned without explanation
        three weeks later. Accordingly, employer's duty to accommodate
        was never triggered.
xi.     Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d 1212 (8th Cir.
        1999). Employer that granted medical leave to customer service
        coordinator with multiple sclerosis and depression and discussed
        her condition with her doctor was not required to grant further
        accommodations which plaintiff did not request prior to
        termination. It is the responsibility of the employee to request
        specific accommodations, and the employer's duty to
        accommodate is not triggered until such requests are made.
xii.    Hammon v. DHL Airways, Inc., 165 F.3d 441 (6th Cir. 1999).
        Airline pilot who suffered from anxiety did not place his employer
        on notice of his condition by simply mentioning that he suffered
        from emotional problems. An employer is not required to speculate
        as to the extent of an employee's disability or need for reasonable
        accommodation if it has not been informed by the employee of his
        specific diagnosis and need for assistance.
xiii.   Loulseged v. Akzo Nobel, Inc., 178 F.3d 731 (5th Cir. 1999).
        Employer did not fail to reasonably accommodate lab technician
        with back injury causing 10-pound lifting restriction when it
        offered plaintiff the opportunity to move one-gallon rather than
        five-gallon cans but she resigned for unrelated reasons one week
        prior to being assigned to can-moving duty. By voluntarily leaving
        her employment, plaintiff caused a breakdown in the interactive
        process; thus it is not possible to determine whether
        accommodation offered by employer was final or would have been
        effective.
xiv.    Burch v. City of Nacogdoches, 174 F.3d 615 (5th Cir. 1999).
        Firefighter with back injury was not entitled to transfer to position
        outside fire department as reasonable accommodation. Plaintiff
        never requested transfer outside fire department, and an employer
        is not liable for failing to provide an accommodation that was
        never requested.
xv.     Nicholson v. Boeing Co., 176 F.3d 489 (10th Cir. 1999).
        Assembly-line worker with shoulder injury that precluded her from
        lifting more than 10 pounds or working overhead could not
        demonstrate her entitlement to transfer simply by stating that her
        employer had jobs she could perform. The burden is on the
        employee to identify a specific, vacant position for which she is
        qualified in order to trigger an employer's duty to accommodate
        through reassignment.
xvi.    Wallin v. Minnesota Dept. of Corrections, 153 F.3d 681 (8th Cir.
        1998). State was not liable for failure to accommodate correction
        officer with alcoholism and depression when he requested transfer


                         95
        but did not link his request to his condition. Even if such
        accommodation were reasonable and plaintiff's condition were
        known to employer, employer had no reason to think that transfers
        were requested as accommodation for a disability.
xvii.   D'Amico v. City of New York, 132 F.3d 145 (2d Cir. 1998). Fire
        department was not liable under Rehabilitation Act for failing to
        accommodate firefighter with cocaine addiction who had not
        suggested any course of treatment or job modifications. An
        employer is not required to grant an accommodation that is not
        requested by an employee.
xviii. Eubank v. Meldesco/Pay-Less, 1998 U.S. App. LEXIS 5482 (9th
       Cir. 1998). Drug store clerk did not establish that accommodation
       provided by employer was unreasonable as a matter of law where
       employer had granted her 180 days medical leave according to its
       policy and physicians' letters attached to her request for
       accommodation did not state whether her disability was temporary
       or permanent and did not state whether she would be able to
       perform her job with or without reasonable accommodation. The
       employee's vague and unspecific request did not place employer on
       sufficient notice that greater accommodation was sought.
xix.    Corrigan v. Perry, 139 F.3d 888 (4th Cir. 1998). Injured industrial
        yard worker who could not lift more than 25 pounds, push or pull
        heavy objects, work above his head or work with a forklift was not
        entitled to job transfer as reasonable accommodation where he had
        not complied with employer's formal procedures for requesting
        such transfer.
xx.     Hunt-Golliday v. Metro. Water Reclamation Dist. of Greater
        Chicago, 104 F.3d 1004 (7th Cir. 1997). City's water reclamation
        district was not required to accommodate fireman-oiler's alleged
        mental disability because she did not request any accommodation.
        Upon return from leave for depression and anxiety, she did not
        request a change of shifts or modifications of facilities or suggest
        any other accommodation for her mental state. Her doctors' letters
        regarding her return stated that she was capable of working.
xxi.    Baker v. Asarco, Inc., 1997 U.S. App. LEXIS 19948 (9th Cir.
        1997). Factory worker was not entitled to reasonable
        accommodation where he failed to request any modification of his
        duties or working conditions. An employer is not required to
        provide an accommodation that is not requested by a disabled
        employee.
xxii.   Burch v. Coca-Cola Co., 119 F.3d 305 (5th Cir. 1997). Corporate
        manager with alcoholism did not allege a failure to reasonably
        accommodate against employer that terminated him when he
        requested to return to his job after successfully completing alcohol
        rehabilitation. A request to be reinstated to an unmodified position


                         96
       does not constitute a request for reasonable accommodation, and
       therefore the employer was not required to accommodate him.
xxiii. Lawrence v. Nat'l Westminster Bank of N. J., 98 F.3d 61 (3rd Cir.
       1996). Bank executive's failure to request a specific
       accommodation for his chronic back injury was sufficient basis for
       summary judgment on allegation that the employer did not provide
       a reasonable accommodation. In order to make out a successful
       claim under the ADA, an employee must allege and/or present
       evidence as to what accommodations were lacking.
xxiv. Kocsis v. Multi-Care Management, Inc., 97 F.3d 876 (6th Cir.
      1996). Nurse with multiple sclerosis and arthritis could not claim
      that nursing home failed to accommodate her disability because
      she did not establish the need for any accommodation. Not only
      did she never request an accommodation from her employer, but
      she testified that she was physically capable of performing her
      duties. Her own doctors reported that she was not limited in her
      activity and consequently did not need any accommodations.
xxv.   Taylor v. Principal Fin. Group, 93 F.3d 155 (5th Cir. 1996).
       Agency manager with bipolar disorder, who asked his supervisor
       for a reduction in his objectives and a lessening of the pressure,
       failed to request an accommodation under the ADA because his
       statements were too indefinite and ambiguous. When the nature of
       the disability, its limitations, and necessary reasonable
       accommodations are not obvious and apparent, the initial burden is
       on the employee and his/her health care provider to specifically
       identify the disability, its resulting limitations, and to suggest
       reasonable accommodations.
xxvi. White v. York Int'l Corp., 45 F.3d 357 (10th Cir. 1995). Failure by
      an assembly worker who underwent arthrodesis, a surgical
      procedure by which his ankle was immobilized, to specify
      reasonable accommodation that would have enabled him to
      perform the essential functions of the job, including the ability to
      lift objects weighing more than fifteen pounds and to stand for
      longer than four hours, rendered him not an qualified individual
      with a disability.

b. If a person with a known disability is having difficulty performing
his/her job, it would be permissible for the employer to discuss the
possibility of reasonable accommodation with the employee. S. Rep. at 34;
Appendix to 29 C.F.R. § 1630.9.
i.     Hammel v. Eau Galle Cheese Factory, 2003 U.S. Dist. LEXIS
       7515 (W.D. Wis. 2003). Legally blind employee raised a triable
       issue of fact that a cheese factory failed to accommodate his
       condition. The failure to engage in an interactive process is not
       sufficient on its own to establish liability; the plaintiff must show


                        97
       that had defendant engaged in the process, together they could
       have identified a reasonable accommodation. The plaintiff’s expert
       concluded there were a number of simple techniques that could
       have been implemented to ensure that the plaintiff's vision
       impairment did not prevent him from properly stacking, flipping or
       stamping cheese. The fact that the plaintiff never requested an
       accommodation was irrelevant, as he did not think he needed one
       and the employer never informed him until his termination that his
       disability was interfering with his job. When an employer knows
       that an employee is disabled and believes the disability is
       preventing him or her from performing the job's essential
       functions, the employer should put the employee on notice that
       there is a problem.
ii.    Taylor v. Phoenixville School Dist., 184 F.3d 296 (3d Cir. 1999).
       School had duty to begin discussion of reasonable accommodation
       with bipolar secretary after she suffered psychotic episode at work,
       her son informed school of her diagnosis, requested
       accommodation, and began to suffer performance problems. When
       an employee's disability is obvious and manifest and is directly
       causing difficulties at work, an employer has a duty to initiate the
       interactive process for discovering possible accommodation.
       Moreover, since mentally ill plaintiff lacked insight into her
       condition, she may have been unable to specify accommodation on
       her own.
c. In the absence of a request, it would be inappropriate to provide an
accommodation, especially if it could impact adversely on the individual
with a disability. S. Rep. at 34.
d. Employer found not required to consider reasonable accommodation
prior to termination.
i.     Brohm v. JH Properties, Inc., 149 F.3d 517 (6th Cir. 1998).
       Hospital could terminate anesthesiologist with sleep apnea who
       slept during surgical procedures where he did not inform his
       employer of his condition until told that he would be terminated.
       An employer is not required to rescind a decision to terminate an
       employee when informed for the first time that the employee
       suffers from a disabling condition.
ii.    Moses v. American Nonwovens, Inc., 97 F.3d 446 (11th Cir.
       1996). Manufacturer that terminated machine operator because of
       his epilepsy and because he posed a direct threat was not required
       to investigate possible reasonable accommodations prior to
       termination. No language in the ADA mandates a pre-termination
       investigation of possible reasonable accommodations. A contrary
       rule would subject employers to liability for not investigating,
       although such investigation would be fruitless.




                        98
iii.   Jacques v. Clean-Up Group, Inc., 96 F.3d 506 (1st Cir. 1996).
       Cleaning company's failure to investigate reasonable
       accommodations that would allow epileptic cleaner to arrive at the
       job-site at 8 a.m. did not constitute a per se failure to provide a
       reasonable accommodation. A jury could reasonably conclude that
       the interactive process was not necessary because the cleaner was
       well educated and just as able, if not better able, to suggest
       alternative accommodations.
e. Employer found required to consider possibility of accommodation
prior to termination, even if plaintiff never requested it.
i.     Hammel v. Eau Galle Cheese Factory, 2003 U.S. Dist. LEXIS
       7515 (W.D. Wis. 2003). Legally blind employee raised a triable
       issue of fact that a cheese factory failed to accommodate his
       condition. The failure to engage in an interactive process is not
       sufficient on its own to establish liability; the plaintiff must show
       that had defendant engaged in the process, together they could
       have identified a reasonable accommodation. The plaintiff’s expert
       concluded there were a number of simple techniques that could
       have been implemented to ensure that the plaintiff's vision
       impairment did not prevent him from properly stacking, flipping or
       stamping cheese. The fact that the plaintiff never requested an
       accommodation was irrelevant, as he did not think he needed one
       and the employer never informed him until his termination that his
       disability was interfering with his job. When an employer knows
       that an employee is disabled and believes the disability is
       preventing him or her from performing the job's essential
       functions, the employer should put the employee on notice that
       there is a problem.
ii.    Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999). City could be
       liable for failure to transfer injured police officers, despite their
       failure to request reassignment. Plaintiffs’ failure to request
       transfer was due solely to their awareness of the well-established
       blanket policy forbidding transfer of law enforcement officers to
       non-law-enforcement positions within the city. An employee who
       knows that his proposed accommodation will be rejected due to a
       blanket policy has no obligation to make futile gestures in order to
       protect his rights. Moreover, plaintiffs’ superiors specifically told
       them that the city would not help them find new jobs, and they
       were thus entitled to believe that any request for accommodation
       would be futile.
iii.   Taylor v. Phoenixville School Dist., 184 F.3d 296 (3d Cir. 1999)
       School was on notice that bipolar teacher had disabling condition
       and might need accommodation when her son provided diagnostic
       information to her supervisor and requested accommodations for
       her. A request for accommodation may be made by a friend, family
       member, or health care provider with knowledge of the disabled


                        99
              employee's condition. Such a request is sufficient to trigger the
              employer's duty to engage in the interactive process.
       iv.    Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281 (7th
              Cir. 1996). School district's failure to determine whether the
              existence of a reasonable accommodation that would help a
              mentally disabled custodian overcome his fear of working in a
              school larger than those in which he had worked in the past created
              genuine issue of material fact as to whether the employer failed to
              provide a reasonable accommodation. Had the employer engaged
              in the interactive process, it may have been able to determine that
              there was an available reasonable accommodation. An employer
              must assist in determining accommodations when the employee
              suffers from mental illness.
       v.     Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131 (2d Cir. 1995).
              School district which denied tenure to a library teacher with
              neurological problems based on her inability to maintain control of
              the classroom was not entitled to summary judgment on the
              teacher's discrimination claim because once the school had
              knowledge of the disability, it had an affirmative obligation to
              make reasonable accommodation to that disability. Failure to
              consider the possibility of reasonable accommodation for a known
              disability, if it leads to discharge for performance inadequacies
              resulting from the disability, amounts to a discharge solely because
              of the disability.
7. Employer may choose the accommodation that is less expensive or easier to
implement, when two or more effective accommodations are identified, as long as
the selected accommodation provides meaningful equal employment opportunity.
H. Lab. Rep. at 66; H. Jud. Rep. at 40; S. Rep. at 35; Appendix to 29 C.F.R. §
1630.9.

       i.     Wilson v. Dalton, Secretary of the Navy, 24 Fed. Appx. 777 (9th
              Cir. 2001). Navy did not fail to accommodate an employee
              suffering from Carpal Tunnel Syndrome by refusing to provide
              him with the specific office equipment he requested. The
              Rehabilitation     Act's     mandate   to    provide    reasonable
              accommodations does not require the employers to provide
              plaintiffs with the specific accommodations they request, however.
              Furthermore, the plaintiff does not dispute that the Navy provided
              some accommodations and produced no evidence tending to show
              that the Navy's accommodations were not reasonable.
       ii.    Barbara Black, v. Wayne Center, 225 F.3d 658 (6th Cir., 2000)
              Social services agency was not required to permit social worker
              with MS to work at home as reasonable accommodation because it
              was against its established policy. Employer provided plaintiff
              with alternative accommodations for her MS, including medical
              leave and paid time off, which plaintiff utilized. If plaintiff wanted


                               100
       further accommodations, such as a place to lie down during
       exacerbations, she could have requested that her employer provide
       a bed or couch in a private room. The employer providing the
       accommodation has the ultimate discretion to choose between
       effective accommodations, and may choose the less expensive
       accommodation or the accommodation which is easier to provide
iii.   Webster v. Methodist Occupational Health Centers, Inc., 141 F.3d
       1236 (7th Cir. 1998). Hospital could fire nurse who suffered
       continuing attention and concentration difficulties due to stroke
       and who refused reassignment to a non-nursing position. An
       employee is not entitled to insist upon a particular reasonable
       accommodation in preference to the accommodation offered by her
       employer.
iv.    Hollestelle v. Metropolitan Washington Airports Authority, 145
       F.3d 1324 (4th Cir. 1998). Property distribution technician who
       suffered from depression, causing chronic lateness, was not
       entitled to 45-minute flex-time window in arriving to work in
       preference to schedule adjustment. An employee is not entitled to
       insist on a particular accommodation in preference to the
       accommodation provided by his employer.
v.     Keever v. City of Middletown, 145 F.3d 809 (6th Cir. 1998).
       Police officer with back, leg and neck injuries was not entitled to
       restructuring of patrol duty or transfer to detective duty in
       preference to reassignment to a desk job. An employee is not
       entitled to insist upon a particular accommodation in preference to
       a reasonable accommodation offered by an employer, and an
       employer is free to grant the accommodation that is least expensive
       or easiest to implement.
vi.    Corrigan v. Perry, 139 F.3d 888 (4th Cir. 1998). Injured industrial
       yard worker was not entitled under Rehabilitation Act to insist on
       job transfer rather than restructuring of current job as reasonable
       accommodation. The employer providing the accommodation has
       the ultimate discretion to choose which accommodation is less
       expensive and easier to perform.
b. Employer may deny a requested accommodation so long as it provides
an alternative one that is reasonable.
i.     Breen v. Department Of Transportation, 282 F.3d 839 (D.C.
       Circuit, 2002). File clerk who suffered from obsessive-compulsive
       disorder raised a genuine issue of material fact as to whether an
       accommodation in the form an alternative work schedule, which
       had been recommended by her doctor, would have allowed her to
       perform the essential functions of her job. Employer’s alternative
       offer to plaintiff’s request for additional time to complete her tasks
       without interruptions was inadequate. The employer’s alternative
       proposal consisted of granting plaintiff a period during her


                        101
       workday to be devoted solely to filing. However, she was
       constantly interrupted during the appointed time, often with the
       approval of her direct supervisor. Thus, a material issue of fact
       existed as to whether Employer’s alternative accommodation
       adequately met the plaintiff’s needs.
ii.    Trepka v. Board of Education, 28 Fed. Appx. 455 (6th Cir. 2002).
       Teacher with permanent back and neck pain did not establish that
       her employer failed to reasonably accommodate her disability
       under the ADA. Plaintiff was limited in her ability to carry
       oversized loads. At her request, plaintiff was transferred to a
       different school which would better accommodate her disabilities.
       Following the transfer, the school reassigned plaintiff to a different
       classroom which was further from her car and necessitated
       carrying materials for longer distances. The Board denied
       plaintiff’s request to be returned to her original room but offered
       her the assistance of the custodial staff or a cart to help her carry
       her materials. An employer is not required to provide an employee
       with her preferred accommodation, only a reasonable one. The
       employer’s offer of the assistance of the custodial staff or the use
       of a cart reasonably accommodated her inability to carry oversized
       loads.
iii.   Emerson v Northern States Power Co. 256 F.3d 506 (7th Cir.
       2001). Associate consultant at power company who suffered from
       anxiety and panic attacks did not prevail on claim that company
       did not engage in the interactive process simply because it did not
       grant her the position she requested. Employer had offered a
       position in another department or a position as a consultant in
       Minnesota that did not require her to deal with safety-sensitive
       calls. Employer is not required to offer the employee’s preferred
       accommodation so long as it offers another reasonable
       accommodation.
iv.    Hoffman v. Caterpillar, Inc., 256 F.3d 568 (7th Cir. 2001).
       Employer did not have to grant disabled computer indexer’s
       request to use a high-speed scanner with an accommodation since
       work was non-essential. The employer can choose the method by
       which it will reasonably accommodate the employee, including
       removing non-essential job functions.
v.     Kiel v. Select Artificials, Inc., 169 F.3d 1131 (8th Cir. 1999) (en
       banc). Employer did not fail to reasonably accommodate deaf
       employee when it denied him a TDD device that he had requested.
       Employer provided fulfilled its duty to accommodate by
       reassigning duty to make telephone calls to a supervisor and
       providing plaintiff with an interpreter when necessary.
vi.    Turner v. Fleming Companies, Inc., 173 F.3d 430 (6th Cir. 1999).
       Factory fulfilled its duty to reasonably accommodate alcoholic


                        102
        loader by offering him unpaid leave during his shift to attend
        rehabilitation program. Plaintiff was not entitled to refuse this
        accommodation and to hold out for the accommodation he desired.
vii.    Crane v. Ceglarek, Inc., 182 F.3d 921 (7th Cir. 1999). Visually
        impaired administrative worker was not entitled to desk-size
        magnifying device as reasonable accommodation. Plaintiff's
        employer had already provided her with large-print computer
        software and enlarging copier, and it was not required to provide
        her with expensive state-of- the-art technology in order to fulfill its
        duty to accommodate.
viii.   *Carter v. Bennett, 840 F.2d 63 (D.C. Cir. 1988). The discharge of
        a blind employee for poor performance in a new position was
        upheld where the employer accommodated the employee by
        reducing his workload to half that of sighted employees and by
        providing him with readers of his choice for all but a few of the
        hours that he stated that he needed them. Voice synthesized
        computer and floppy disk drives requested by the blind employee
        were unnecessary for adequate performance of his job as public
        affairs assistant, which required him to write responses to
        congressional inquiries.
ix.     Corder v. Lucent Technologies, Inc., 162 F.3d 924, (7th Cir. 1998).
        Account support representative with depression and anxiety that
        caused unpredictable absences was not entitled to medical leave of
        absence in preference to part-time work or transfer to another
        office where her absenteeism could be accommodated. An
        employer is not obligated to provide an employee the
        accommodation she requests or prefers, as long as it provides one
        that is reasonable.
x.      Barnett v. U.S. Air, Inc., 157 F.3d 744 (9th Cir. 1998). Airline
        customer service agent with back injury was not entitled to robotic
        lifting equipment as reasonable accommodation where he had
        already been provided with a forklift. An employer is not required
        to provide a disabled employee with the most technologically
        advanced equipment as long as he provides equipment that is
        reasonable and permits the employee to perform his job.
xi.     Weiler v. Household Fin. Corp., 101 F.3d 519 (7th Cir. 1996).
        Senior account clerk, who suffered from depression and anxiety
        after having a heated confrontation with her supervisor, was not
        entitled to an immediate transfer to another position because her
        employer provided her with several reasonable accommodations,
        including short-term disability leave, time off for therapy sessions,
        and applying for long-term disability leave on her behalf. The
        company even offered her alternative positions within her salary
        grade, which she refused.




                         103
xii.    Schmidt v. Methodist Hosp. of Ind., Inc., 89 F.3d 342 (7th Cir.
        1996). Hospital was not required to transfer nurse-trainee with
        hearing impairment and who was having difficulties in his training
        because it had offered him the reasonable accommodations of
        additional training or resignation and re-application to a different
        unit in the hospital, both of which he refused. These
        accommodations may not have provided him everything he
        wanted, but they were enough to satisfy the hospital's statutory
        duty.
xiii.   *Stewart v. County of Brown, 86 F.3d 107 (7th Cir. 1996). Sheriff
        department reasonably accommodated deputy's cervicodorsal
        spinal symptoms (neck and back pain) by providing him with an
        ergonomically correct chair, adjusting his angle for viewing the
        security monitors and fixing lighting and glare problems.
        "Accommodation" is not synonymous with a "perfect cure for the
        problem" and it is difficult to imaging how much more the
        department could have done, short of giving the deputy a blank
        check to remodel the building.
xiv.    Fink v. New York City Dep't of Personnel, 53 F.3d 565 (2d Cir.
        1995). City did not fail to reasonably accommodate two blind
        supervisors by refusing to provide a Braille test as a reasonable
        accommodation because the City provided audio recordings of the
        test, tape recorders, readers and extra time which the court found
        reasonably accommodated plaintiffs' disability. The City was not
        required to consider plaintiffs' preferences as long as the
        accommodations provided were reasonable.
xv.     Vande Zande v. Wisconsin Dep't of Admin., 44 F.3d 538 (7th Cir.
        1995). ADA does not require employer to provide laser printer and
        desktop computer to a paraplegic program assistant when it had
        already provided a laptop and had determined further
        accommodation would involve unjustified time, expense and
        inconvenience. Employer need only implement an effective
        accommodation and may choose the accommodation that is less
        costly or easier to provide.
xvi.    Employer does not have to provide an individual disabled by a
        back impairment with state of the art mechanical lifting device if it
        provided the employee with a less expensive or more readily
        available device that enables employee to perform necessary job
        functions. Appendix 29 C.F.R. § 1630.9.
xvii.   An employer would not have to hire a full-time reader for a blind
        employee if a co- worker is available as a part-time reader when
        needed, and this will enable the blind employee to perform his job
        duties effectively. TAM, § 3.4.




                         104
8. Note: Transfer is neither required nor permitted as an alternative
accommodation until a good faith effort has been made to accommodate the
individual in his/her present position. S. Rep. at 32; Appendix 29 C.F.R. §
1630.2(o).

       i.      Bryant v. Better Business Bureau, 923 F. Supp. 720 (D. Md. 1996).
               Employer that transferred an employee with a hearing problem to a
               position which required few telephone calls, rather than
               accommodating her in her prior position by providing a TTY
               device, was not entitled to summary judgment. Although an
               employer can implement the least expensive or burdensome
               accommodation, it cannot reassign an employee unless there is no
               accommodation that would allow her to perform her current job or
               accommodating her would pose an undue hardship. In this case,
               the employer failed to show that providing the TTY device would
               pose an undue hardship.
       ii.     Dyer v. Jefferson County Sch. Dist., 905 F. Supp. 864 (D. Colo.
               1995). Employee in assessment psychologist position, whose
               physical disability prevented her from bending her neck, reaching
               over a table, lifting more than 15 pounds, and sitting or driving for
               extended periods of time was not entitled to be reassigned to a
               school psychologist position because she could be reasonably
               accommodated in her current position. The school was not required
               to give the employee the accommodation she desired when other
               accommodations were reasonable

9. Interactive Process is Mandatory When the Employer Knows of the Need
       i.      Hammel v. Eau Galle Cheese Factory, 2003 U.S. Dist. LEXIS
               7515 (W.D. Wis. 2003). Legally blind employee raised a triable
               issue of fact that a cheese factory failed to accommodate his
               condition. The failure to engage in an interactive process is not
               sufficient on its own to establish liability; the plaintiff must show
               that had defendant engaged in the process, together they could
               have identified a reasonable accommodation. The plaintiff’s expert
               concluded there were a number of simple techniques that could
               have been implemented to ensure that the plaintiff's vision
               impairment did not prevent him from properly stacking, flipping or
               stamping cheese. The fact that the plaintiff never requested an
               accommodation was irrelevant, as he did not think he needed one
               and the employer never informed him until his termination that his
               disability was interfering with his job. When an employer knows
               that an employee is disabled and believes the disability is
               preventing him or her from performing the job's essential
               functions, the employer should put the employee on notice that
               there is a problem.




                                105
ii.    Shapiro v. Township of Lakewood, 292 F.3d 356 (3rd Cir. 2002).
       City failed to engage in the interactive process when it refused to
       transfer an EMT to a position which would not aggravate his back
       injuries. The city’s argument that the plaintiff failed to follow the
       city’s unwritten policy regarding transfer applications failed
       because under US Airways v. Barnett the plaintiff must prove that
       violating such a disability-neutral rule would be an unreasonable
       accommodation, or that granting the accommodation would cause
       an undue hardship. The plaintiff had plainly voiced his desire for a
       transfer in the form of conversations with his supervisor and letters
       to the city. The ADA requires employers to make a good-faith
       effort to respond to such requests for accommodation, rather than
       simply relying on an unwritten policy in order to refuse the
       request.
iii.   Barnett v. U.S. Air, Inc., 196 F.3d 979 (9th Cir. 2000). Airline had
       an obligation to engage in the interactive process with cargo
       handler with back problems that made him unable to perform the
       essential functions of his job. But plaintiff had requested
       reassignment to mailroom job. The interactive process is a
       mandatory rather than a permissive obligation on the part of
       employers under the ADA and this obligation is triggered by an
       employee or an employee's representative giving notice of the
       employee's disability and the desire for accommodation. In
       circumstances in which an employee is unable to make such a
       request, if the employer knows of the existence of the employee's
       disability, the employer must assist in initiating the interactive
       process.
iv.    Barnett v. U.S. Air, Inc., 196 F.3d 979 (9th Cir. 2000). Issue of fact
       existed as to airline’s liability for its failure to engage in good faith
       in the process of identifying a reasonable accommodation for a
       cargo handler with back problems. Plaintiff had triggered the
       employer’s interactive process obligation by communicating to the
       airline his desire for accommodation based on his disability but the
       airline did not seriously considered the suggestions. To put the
       entire burden for finding a reasonable accommodation on the
       disabled employee or, effectively, to exempt the employer from the
       process of identifying reasonable accommodations, conflicts with
       the goals of the ADA.
v.     Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d
       1011 (8th Cir., 2000). An issue of fact remains as to whether an
       employer failed to participate in an interactive process with a
       secretary, whose carpal tunnel syndrome permanently restricted
       her from performing keyboard functions. The plaintiff had
       informed her employer of her disability and requested assistance in
       locating an available, non-typing position within the company, but
       the human resource department failed to respond to her repeated


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                     requests. An employer’s failure to engage in an interactive process
                     to determine whether reasonable accommodations are available
                     was prima facie evidence that the employer may be acting in bad
                     faith.

J. Burden of Production

      1. Plaintiff has the burden of showing that there is a reasonable accommodation
      that will make it possible for him/her to perform the essential functions of the job.
      (See Section V.J.5., infra, for detailed discussion of burden proof regarding undue
      hardship and reasonable accommodation.)

             i.      U.S. Airways, Inc. v. Robert Barnett, 122 S. Ct. 1516 (U.S. 2002).
                     Injured cargo worker, requesting that his employer accommodate
                     him in a mailroom job by ignoring its seniority system, had the
                     burden of demonstrating that such an accommodation was
                     reasonable rather than the employer demonstrate that it would
                     impose an undue hardship on the company. An ordinary English
                     meaning of the term "reasonable accommodation" does not
                     constitute a redundant mirror image of the term "undue hardship."
                     The statute refers to an "undue hardship on the operation of the
                     business." Yet, a demand for an effective accommodation could
                     prove unreasonable because of its impact, not on business
                     operations, but on fellow employees.
             ii.     EEOC v. Dillon Cos. Inc. d/b/a King Soopers Inc., 310 F.3d 1271
                     (10th Cir. 2002). Grocery stores with a collective bargaining
                     agreement must provide a response to The Equal Employment
                     Opportunity Commission's subpoena to obtain staffing information
                     to determine whether a reasonable ADA accommodation was
                     available. The employer's statement that there were no positions
                     available was insufficient to warrant not reviewing hiring
                     decisions. The existence of a collective bargaining agreement and
                     an "entrenched seniority system” did not presumptively mean that
                     the EEOC should not be able to look at the records. In order for the
                     EEOC to investigate the plaintiff’s charge that the company
                     violated the ADA by not providing her a reasonable
                     accommodation, it needed to be able to see how positions were
                     filled at stores in the area other than the one where plaintiff worked
                     and whether the company followed its hiring policy.
             iii.    Spraggs v. Sun Oil Co., 2000 U.S. App. LEXIS 10694 (10th Cir.
                     2000). A lube service worker who was terminated while
                     recovering from back and neck injuries failed to meet his burden of
                     showing      reasonable   accommodations         were      possible.
                     Reassignment to his former position was not a reasonable
                     accommodation because the position no longer existed and other
                     employees were performing the job duties. His request that the


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                   company “allow him to have more assistance” was too vague to
                   satisfy his burden of persuasion. Finally, plaintiff’s list of vacant
                   positions to which he could be reassigned was also an ineffective
                   accommodation, as they all require tasks that the plaintiff could not
                   perform due to his back restrictions.
            iv.    Dudley v. California Dept. of Transportation, 200 U.S. App.
                   LEXIS 5249 (9th Cir. 2000). A company was not required to
                   assign a diabetic to another supervisor, provide her with a different
                   schedule, or release her from the documentation requirements of
                   the leave control policy. The plaintiff produced no evidence to
                   show that such actions would have been reasonable
                   accommodations that would enable her to perform the essential
                   duties of the position.
            v.     Prince v. Suffolk County Dept. of Health Services, 2000 U.S. App.
                   LEXIS 901(2nd Cir. 2000). An employee’s conclusory statement
                   that he might be able to perform the job duties if his employer
                   reasonably accommodated his alleged psychological disability was
                   insufficient to show that he could have performed his job with
                   reasonable accommodation. Even the expert report the plaintiff’s
                   doctor was bereft of any indication that he was qualified to
                   perform the essential functions of the job with any sort of special
                   arrangements.
            vi.    Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723 (8th Cir. 1999).
                   Bank was not liable to depressed teller who did not make any
                   reasonable suggestions for accommodation for failing to take
                   active steps on its own to determine reasonable accommodation.
                   The ADA places the burden on the plaintiff to identify a
                   reasonable accommodation that would allow him to perform the
                   essential functions of his job. In this case, the accommodation
                   plaintiff identified, an unmonitored phone where he could call
                   family and friends during a panic attack, would not have enabled
                   him to adequately perform his duties.
            vii.   Joe v. West, 135 F.3d 769 (4th Cir. 1998). Defense Department
                   was not required to grant further accommodation to typist with
                   eyestrain after installing glare screen and shortening work shift that
                   failed to improve her performance. Plaintiff provided no evidence
                   that any further accommodation would enable her to perform the
                   essential functions of her job.

K. Financial And Technical Assistance For Accommodations




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1. An eligible small business may take a tax credit of up to $5000 per year for
accommodations made to comply with the ADA. The credit is available for one-
half the cost of "eligible access expenditures" that are more than $250 but less
than $10,250. TAM, § 3.11(1).




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       a. An eligible small business is one with gross receipts of $1 million or
       less for the taxable year, or 30 or fewer full time employees. TAM,
       §3.11(1).
       b. "Eligible access expenditures" for which the tax credit may be taken
       include the types of accommodations required under Title I of the ADA as
       well as accessibility requirements for commercial facilities and places of
       public accommodation under Title III. TAM, § 3.11(1).
       c. To be eligible for the tax credit, changes made to remove barriers or to
       provide services, materials or equipment must meet technical standards of
       the ADA Accessibility Guidelines, where applicable. TAM, § 3.11(1).
2. Any business may take a full tax deduction, up to $15,000 per year, for
expenses of removing specified architectural or transportation barriers. TAM, §
3.11(2); IRC § 44 Tax Credit and § 190 Tax Deduction.
       a. Both the tax credit and the tax deduction are available to eligible small
       businesses. For example: If a small business makes a qualified expenditure
       of $24,000, it may take the $5000 tax credit for the initial $10,250 and, if
       the remaining $13,750 qualifies under Section 190, it may deduct that
       amount from its taxable income. However, a business may not receive a
       double benefit for the same expense. For example, it may not take both the
       tax credit and the tax deduction for $10,000 spent to renovate bathrooms.
       TAM, § 3.11(2).
3. Tax credits also are available under the Targeted Jobs Tax Credit Program
(TJTCP) for employers who hire individuals with disabilities referred by state or
local vocational rehabilitation agencies, State Commissions on the Blind and the
U.S. Department of Veterans Affairs and certified by a State Employment
Service. TAM, § 3.11(3).
       a. Under the TJTCP, a tax credit may be taken for 40% of the first $6000
       of an employee's first-year salary. TAM, § 3.11(3).
4. State or local vocational rehabilitation agencies and State Commissions for the
Blind can provide financial assistance for equipment and accommodations for
their clients. The U.S. Department of Veterans Affairs also provides financial
assistance to disabled veterans for equipment needed to help perform jobs. TAM,
§ 3.11(4).
        a. For further information, see "Financial Assistance for
        Accommodations" in the Resource Directory Index in the EEOC
        Technical Assistance Manual (1992).
5. Major resources for information, assistance, and referral to local specialized
resources are 10 new ADA Regional Business and Disability Technical
Assistance Centers. For further information on these centers see ADA Regional
Business and Disability Technical Assistance Centers in the TAM Resource
Directory.

       a. Other resources include State and Local vocational rehabilitation
       agencies, Independent Living Centers, The Job Accommodation Network
       (800) 526-7234 or (800) 526-4698, The President's Committee on


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              Employment of People with Disabilities (202) 376-6200 or (202) 376-
              6205, and the Governors' Committees on Employment of People with
              Disabilities.
L. Practical Recommendations***
      1. Refer to Section IV.E, infra, for a comprehensive list of practical
      recommendations related to both Reasonable Accommodation and Undue
      Hardship.
      2. Appendix A provides a list of worksheets and tools That make it possible for
      employers to resolve any requests for accommodation and to handle of the
      interactive process.




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