A major component of the Americans with Disabilities Act (ADA) is the interactive process. The law requires employers and employees to actively engage in this dialogue when exploring reasonable accommodations. But there is no requirement that an employer agree to an employee’s preferred accommodation if there is another accommodation that is less expensive or easier to provide that will have the same effect.
As long as an employer engages in a good faith effort at the interactive process and then offers a reasonable accommodation, the responsibility to ensure that the interactive process not break down is the employee’s burden. Such was the case in Thompson v. Microsoft Corp., 2021 U.S. App. LEXIS 18614 (5th Cir. June 22, 2021).
Thompson worked first as an accountant technology strategist at Microsoft. He requested accommodations for his Autism Spectrum Disorder (ASD) from Microsoft’s human resources group in 2015. In addition to a request to working on only one project at a time, he asked for an assistant to handle his administrative tasks and permission to work from home. He also said he was interested in becoming an Enterprise Architect (EA), a senior-level executive position.
Microsoft told Thompson that some of his accommodation requests were incompatible with the EA role. Thompson then withdrew the requests, asked that his manager not be told of his ASD and applied for an EA position elsewhere at Microsoft. He was hired as an EA in Austin, Texas.
Things did not go well for Thompson in the EA role. Deliverables were not submitted on time and what was submitted was not good. Only then did Thompson tell his manager of his ASD, and only then did he begin to ask for accommodations.
Thompson’s requests included a noise cancelling headset and a specialized job coach, which Microsoft granted. But he also asked for an administrative assistant, a scribe, and specialized software to support time management and organization for individuals with ASD and ADHD.
Microsoft told Thompson that his requests for assistants to perform some of the EA work would detract from the ability of the EA role to be carried out successfully.
After months of additional negotiation without resolving Thompson’s accommodation request to his satisfaction, Microsoft removed Thompson from the EA position. He was placed in the job-reassignment process – another appropriate form of accommodation under the ADA. But Thompson objected to reassignment, claiming he was now willing to accept agreed upon accommodations and make alternative arrangements to address his other needs.
Microsoft rejected that approach and proceeded with job-reassignment. But Thompson refused to accept any position outside the Austin area or any position that paid a lower salary. Nothing was available that fit his requirements. Thompson then took long-term disability leave, never returning to work at Microsoft.
Instead, he sued Microsoft for failure to accommodate, discrimination, and hostile work environment under the ADA. The district court granted Microsoft’s motion for summary judgment. Thompson appealed.
Affirming dismissal of the case, the Fifth Circuit said that “[t]he ADA does not require an employer to relieve an employee of any essential functions of his or her job, modify those duties, reassign existing employees to perform those jobs, or hire new employees to do so.” It held that Microsoft had continued the ADA’s interactive process by placing Thompson in job reassignment – not terminating him – and engaged in good faith negotiations on reasonable accommodations over several months.
Moreover, since Thompson remains on long-term disability leave, Microsoft has not made any adverse employment decision. And, said the court, making reasonable accommodations through job reassignment and an employer’s criticism of an employee’s work does not constitute harassment.
**This blog was written by Luca Cellucci, an intern at Kollman & Saucier this Summer.