3 Keys to the ADA’s Interactive Process

The ADA's Interactive Process, Getting to YES

Frequently, a federal employee will request a reasonable accommodation, and may even specify the accommodation he wants. The federal agency will respond by offering an accommodation that the employee may not desire. The employee then does not accept the offered reasonable accommodation from the agency. The employee does not continue the negotiations and instead files with the EEO office.

What to know about the ADA’s interactive process

If you find yourself in situations similar to this, there are three things that you should be aware of before going through the EEO office’s process.

  • The agency is required to go through an interactive process with you. At the core of any request for a reasonable accommodation under the ADA is the interactive process between the employee in the employer. Both sides are responsible for interacting with each other to find a reasonable accommodation. That means that if one side or the other does not participate in trying to find a reasonable accommodation, that side can be blamed for failing to find an accommodation. That can subject a federal agency employer to liability under the ADA. For an employee, that can mean that even if no reasonable accommodation is provided, the EEOC will not fault the agency for failing to provide an accommodation.
  • The Agency does not have to give you your preferred accommodation. This may sound counterintuitive at first, but the agency can offer you a different accommodation than the one you were hoping for. However, if that accommodation does not allow you to perform your job, as an accommodation should, then the agency is responsible for trying alternatives and must at least consider your proposal. Part of the interactive process under the ADA is for the employee and the agency to work together to see if an accommodation actually works, and if not to figure out what alternatives there might be.
  • An accommodation must be possible. ADA accommodations are only required if there is some accommodation that would help the employee to be able to do his or her job. If no accommodation is feasible, then the ADA does not fault the employer for failing to provide an accommodation. This is because the ADA did not specifically make it unlawful to fail to participate in the interactive process – it is only unlawful if the process would have resulted in reasonable accommodation.

Federal agencies must provide qualified employees with accommodations

The ADA requires employers to provide reasonable accommodations for disabled employees. However, if the employee cannot perform the essential functions of his or her job with any accommodation, the ADA does not require the employer to make an accommodation.

When it comes to accommodations, having a lawyer may be more important than having a doctor on your side. Doctors frequently do not understand the legal requirements of the ADA. A doctor may state that an employee is totally disabled and unable to perform the essential functions of his or her job under any conditions, believing that this will help the employee. However, when a doctor makes this kind of statement, it actually excuses the employer from providing any kind of reasonable accommodation because the employee is admitting that under no circumstances can he or she perform the job. Such an admission can be grounds for legal termination even under the ADA.

Employees need to be very careful when making requests for accommodations because it may imply that without an accommodation they cannot do the essential functions of their job. The ADA does not require employers to continue to employ employees who cannot perform the essential functions of their job even with an accommodation.

If you believe that you’re facing an issue with ADA accommodations at the federal agency where you work, you should seek out the advice of an attorney to avoid costly mistakes. In attorney can also help you develop the doctors record that you need in order to be able to qualify for reasonable accommodations at the agency.

The EEOC Process for Federal Employees (Graphic)

The EEOC process for federal employees can be, even at the best of times, confusing. This info-graphic lays out some of the major events and deadlines that employees face in the process.

The EEO process is divided into two phases

The first phase of the EEO process for federal employees  is filing with the Agency’s own EEO office. This initiates the process and is required in order to file a complaint with the EEOC or to file a discrimination case in federal court. This process ends when the employee files a formal complaint with the EEOC and the agency assigns an investigator who interview relevant witnesses and assembles relevant documents.

After receiving the Report of Investigation (ROI), the employee has the right to bring her case before an EEOC administrative judge. This process includes discovery and concludes when the administrative judge renders a decision, and the agency issues a final agency decision FAD). During this process, the employee goes through discovery to summary judgment, where the administrative judge decides whether there is sufficient evidence to warrant a hearing on the facts of the case. The case proceeds then on to a hearing and a decision by the administrative judge, which the agency can either adopt or reject in its Final Agency Decision.

After the issuance of the FAD, the employee can choose to appeal to the EEOC or filing in federal court, or both.

Download a PDF of this document:

Federal employee EEOC Process

Per Se Retaliation – Federal Supervisors Unlawfully Threaten Employees

Man yelling at phone

In two separate cases in 2017, the EEOC found that federal supervisors committed per se retaliation, meaning that the actions taken by the agency were unlawful on their face. In most instances when an agency takes an employment action, the agency’s motive is unclear. In per se retaliation, by contrast, the agency discourages or announces its intention to prevent an employee from filing or supporting claims of discrimination against the agency.

Supervisor behavior that has a potentially chilling effect on employees who use the EEO process is a per se violation of the EEO laws. The EEO complaint process is the primary tool that employees can use to enforce equal employment opportunity. Per se retaliation, which openly discourages employees from filing or supporting discrimination complaints is not just wrong, it is legally prohibited under Title VII of the Civil Rights Act of 1964 and related laws.

Supervisors threatening employees is per se retaliation

In one case, two managers pulled the employee into an office, told him they were investigating a complaint, and asked him if he intended to “play the Latino card.” The EEOC found that this comment on its face discouraged the employee from participating in the EEO process, such as by supporting his own or another employee’s complaint. The EEOC ordered the agency to investigate the damages that the employee suffered and to take disciplinary action against the supervisor who made these statements. (Ivan V. v. McDonald).

In another case, the managers’ statements were even more egregious. He told one of his employees: “If you do this [make an EEO complaint], I will get you.  It may take two months, two years, five years, but I will get you.” He stated that “nothing would stick” to him and that he had so many complaints before in the past. He told employees that he worked with the agency attorneys and any complaints would “go nowhere.” He told employees that they should not grieve anything “if we know what’s good for us.” The EEOC found that these statements in themselves constituted unlawful reprisal and were “at best, an ignorance of his responsibilities under EEO laws and, at worst, blatant disregard for the rights of individuals under those laws.” The EEOC ordered that the agency pay $19,385 in attorneys’ fees, $8,000 in compensatory damages, and post notice of the finding of discrimination. (Mindy O. v. Dep’t of Homeland Security).

Other EEOC cases finding per se retaliation

The EEOC has found instances of per se retaliation in previous cases, including:

If you believe you have been the victim of retaliation, you may have a very limited time to contact an EEO counselor to report it. You may want to consider contacting an experienced EEO lawyer who can help you through the process.

Federal Employee Free Phone Consultation

Find a time to talk about your case with a lawyer, not an intake coordinator. 

Here’s what you should know:

  • This is completely free, no cost, no obligation on your part (Lawyers can’t expect payment without an agreement)
  • You get helpful information about your federal EEO case 
  • This is the start of the process to find an attorney to represent you