On Sept. 16, 2013, the conservative U.S. Court of Appeals for the Fifth Circuit found that an employer’s obligation to provide a reasonable accommodation to an employee under the Americans with Disabilities Act (ADA) is not restricted to modifications that enable performance of essential job functions. Rather, the court held that reasonable accommodations must enable an employee to enjoy the equal benefits and privileges of employment as are enjoyed by non-disabled employees.
In Feist v. Louisiana, No. 12-31065 (5th Cir. Sept. 16, 2013), a former assistant attorney general for the Louisiana Department of Justice (LDOJ) brought an action under the ADA, alleging that the agency discriminated against her by declining to provide a free on-site parking space to accommodate her disability (osteoarthritis of the knee). The district court granted summary judgment to LDOJ, holding that the plaintiff failed to explain how the denial of on-site parking limited her ability to perform the “essential functions” of her job.
As a general rule, a plaintiff alleging a failure to accommodate under the ADA must prove (1) she is a qualified individual with a disability, (2) the disability and its consequential limitations were known by the employer, and (3) the employer failed to make “reasonable accommodations” for the known limitations. The sole question on appeal was whether a required accommodation is restricted to modifications that would enable an employee to perform the essential functions of his or her job.
Relying on both the language of the ADA and the implementing regulations and guidance, the 5th Circuit overturned the dismissal of plaintiff’s ADA claim. In reaching its decision, the court noted that the text of the ADA provides that a reasonable accommodation may include:
- Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
- Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
42 U.S.C. § 12111(9). The court observed that nothing in the statute’s language requires that an accommodation must facilitate the essential functions of the employee’s position. The court further noted that the requested on-site parking “would have presumably made the employee’s workplace ‘readily accessible to and usable’” by her, therefore falling within subsection (A).
The court also noted that the language of ADA’s implementing regulations does not require that reasonable accommodations relate to a position’s essential functions. Rather, according to the court, the regulations “suggest the contrary by defining reasonable accommodation as:
- Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
- Modifications or adjustments to the work environment…that enable an individual with a disability who is qualified to perform the essential functions of that position; or
- Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.”
29 C.F.R. § 1630.2(o)(1)(emphasis added). Therefore, according to the court in Feist, an accommodation that enables an individual to perform the essential functions of a position is only one of three categories of potential reasonable accommodation under the regulations. The court further noted that EEOC guidance explicitly provides that providing reserved parking spaces may constitute reasonable accommodation under some circumstances. 29 C.F.R. pt. 1630 App. § 1630.2(o).
Feist requires additional scrutiny by employers when determining whether a requested accommodation is reasonable, even if the requested action is not directly related to the essential functions of an employee’s job. Given that the 5th Circuit is a fairly pro-employer jurisdiction, it is likely that this expansive view of reasonable accommodations may soon be adopted in other less conservative courts as well.
For questions regarding the Feist decision or assistance in reviewing or analyzing particular requested reasonable accommodations under the ADA, please contact the author or any other member of the McGuireWoods Labor and Employment group.