How to Apply the ADA Correctly

Sometimes employers just do it right. They identify a possible ADA issue and take all of the right steps to protect not only its own business interests, but the rights of the employee as well. Take the recent 7th Circuit case of Stern v. St. Anthony’s Health Center, decided earlier this month. 

The plaintiff worked for the St. Anthony’s Health Center as chief psychologist since 2002. His job required that he oversee all aspects of the acute care center’s treatment of children, including those with depression, anxiety and suicidal risks. While plaintiff received good evaluations during most of his employment, in 2010 a resigning psychologist reported in their exit interview that plaintiff was exhibiting memory lapses. After further investigation, the employer concluded that that a fitness for duty evaluation was appropriate. The employee agreed on the selection of the doctor to perform it.

It turns out that in fact the plaintiff was suffering from memory problems and scored very poorly on the memory tests administered during the exam. The evaluating doctor concluded that plaintiff could not continue to perform administrative duties requiring attention to detail and that he not treat patients unless he could receive assistance in note taking and other duties of the treatment.

The employer identified that plaintiff’s administrative duties accounted for 15 to 30 percent of the position’s time, supervisory duties 30 to 50 percent, and treatment duties another 15 to 25 percent, It also concluded that it could not assign another treating psychologist to accompany plaintiff because that was not their normal procedure and an inefficient and thus unreasonable solution. The employer discharged plaintiff based on the conclusion that he was not qualified to perform the essential functions of the chief psychologist position, with or without reasonable accommodation.

Plaintiff’s lawsuit claimed that he had been discriminated against under the ADA because, among other things, the employer had not engaged in the interactive process to determine whether a reasonable accommodation existed. 

The 7th Circuit found that while the employer had not sought to accommodate the plaintiff and had not engaged in the interactive process,  it had also not violated the law because the evidence showed that plaintiff could no longer perform the duties of the chief psychologist position with or without a reasonable accommodation. To tailor the plaintiff’s job to fit his current abilities would have required substantial changes to the job, including assigning another doctor to do some of that job. The court held that because  the changes needed were so substantial, the employer  did not have to engage in the interactive process.

Here’s what the employer did right:

1. The employer had a documented record of problems with the employee which supported their need to address its concerns. This defends against any claims of retaliation or that the discharge for performance reasons was a pretext for an illegal reason. 
2. The employer sought an independent evaluation and obtained the employee’s agreement as to the selection of the doctor, even though presumably it had qualified individuals on staff who could also have done this. This defends against any claims of bias.
3. The employer was able to break down the various aspects of the job in order to correlate the duties to not only the essential functions of the job but to how much of the job required accommodation based on the fitness for duty evaluation. This supports the position that the employee was not qualified.
4. The employer was able to determine that in order to modify the job, pursuant to the independent evaluator’s opinion, it would have to not only remove a significant number of duties, but also assign another doctor to essentially do the plaintiff’s job for him. 

The employer’s methodical approach and good job description certainly carried the day for it in the lawsuit. Although employers should typically engage in the interactive process  to ensure compliance with the law, when an employee cannot perform the major duties of the job as documented by an independent fitness evaluation and a solid job description, the employer may be able to determine that the individual is not qualified.