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The federal appeals court in Boston has defined the standard of proof that employees must meet when they claim to need workplace adjustments as an accommodation under the federal Americans with Disabilities Act. The 1st U.S. Circuit Court of Appeals, in Manuella D. Reed v. LePage Bakeries, Inc., No. 00-1966, found that the employee must prove the accommodation is needed not only to perform the job in question, but also must be reasonable enough for the employer to comply without undue hardship. Reed was diagnosed with bipolar disorder, a condition of mood swings and emotional instability made worse by stressful situations. She claimed her employer, LePage Bakeries of Lewiston, Maine, failed to accommodate the condition by allowing her to “walk away” from confrontational situations with co-workers and supervisors. Reed was fired after a contentious meeting with her supervisors in 1996. Two years later, she filed suit in federal court, claiming LePage violated the ADA statute, 42 U.S. U.S.C., section 12101, and discriminated against her by “failing to reasonably accommodate her disability,” according to court papers. The recent decision affirms a lower court ruling that rejected Reed’s claim that she had “adequately” requested an accommodation during a previous confrontation in her workplace and that the bakery “prevented her from exercising [that] accommodation” during the 1996 meeting. Peter Bennett, of The Bennett Law Firm in Portland, Maine, called the April 5 decision in favor of his client, LePage Bakeries, “a significant ADA decision to come out of the 1st Circuit.” “It sets the tone for what an employer needs to know before they are put on notice for an accommodation to be made,” said Bennett, referring to the court’s analysis that Reed had not provided enough information for LePage to know an accommodation was necessary. Bennett said the court’s conclusion that, “the ADA is not a license for insubordination at the workplace,” also bodes well for employers. “The decision makes it safer for them to take action on a worker’s misconduct,” Bennett said. Reed’s attorney, John R. Lemieux of Reedfield, Maine, said he is considering whether to ask for a re-hearing or seek a review by the full Circuit Court. He declined to comment while the matter is pending. ENTER THE EEOC The 1st Circuit decision also rejected an argument made in an amicus brief submitted by the U.S. Equal Employment Opportunity Commission to support Reed, claiming she would have to show only that a reasonable accommodation would help her perform her job better. Instead, the court largely followed federal appeals court rulings in other circuits to “distinguish between two burdens,” wrote 1st U.S. Circuit Court of Appeals Judge Sandra L. Lynch. The ruling upholds a decision in the bakery’s favor by U.S. District Court Judge D. Brock Hornby, chief judge of the District of Maine. “In order to prove ‘reasonable accommodation,’ a plaintiff needs to show not only that the proposed accommodation would enable her to perform the essential functions of her job, but also that, at least on the face of things, it is feasible for the employer under the circumstances,” wrote Lynch. “If plaintiff succeeds in carrying this burden, the defendant then has the opportunity to show that the proposed accommodation is not as feasible as it appears but rather that there are further costs to be considered, certain devils in the details.” “The first approach shifts the burden of persuasion from plaintiff to defendant, so that the burden of identifying a reasonable accommodation is only one of production. Under this approach, the plaintiff’s burden is not a heavy one … The other approach ostensibly keeps all burdens of proving reasonable accommodation on the plaintiff. Nonetheless, under this approach, the plaintiff still need only make a general or facial showing of reasonableness.” The 1st Circuit also determined, “We are reluctant to talk about the problem of the relationship between ‘reasonable accommodation’ and ‘undue hardship’ as one of shifting burdens. We prefer to discuss the burdens of showing reasonable accommodation and undue hardship as they are allocated in the [ADA] statute: the plaintiff fully bears the former, and the defendant fully bears the latter. The real issue is the quantum of proof needed to show undue hardship.” Several attorneys from the EEOC’s Washington D.C. headquarters submitted the amicus curiae brief in Reed’s favor. Lead EEOC counsel on the case, Barbara L. Sloan, could not be reached for comment by deadline.

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