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It is rare for a court to impose a greater burden upon an employer under the Americans with Disabilities Act than under the U.S. Equal Employment Opportunity Commission regulations. This is particularly so in light of the recent questioning of the commission’s regulations by the U.S. Supreme Court and lower courts. Yet this appears to be what the 3rd U.S. Circuit Court of Appeals has done in its recent decision in Skerski v. Time Warner Cable Co., No. 00-3199 (July 9, 2001). In Skerski, a three-judge panel of the 3rd Circuit held that an employer may only reject an employee’s suggested “reasonable accommodation” if the accommodation would constitute an “undue hardship.” In the absence of evidence that the employee’s proposed accommodation would constitute such a hardship, it appears that an employer will be required to provide the employee’s proposed accommodation or run the risk of litigation over its failure to do so. Although the employee’s proposed accommodation is consistently given deference and may, under certain circumstances, be dispositive, this requirement, which appears to be without exception, goes beyond the EEOC’s guidelines for providing a “reasonable accommodation” under the ADA. FACTS OF THE CASE In the Skerski case, Larry Skerski was hired by Time Warner’s predecessor, New Channels, in 1982 to install and disconnect cable television service for customers. Part of his job was to service cable wires at aerial and underground cable plants. The position required that Skerski spend about 50 percent of his time climbing ladders, poles and towers. After about 10 years on the job, Skerski developed panic and anxiety disorders that prevented him from working at heights. For the next three years, Skerski’s assignments were limited to “underground work,” despite a portion of his job description that provided that an employee needed to “climb poles to perform line transfers.” The position’s job description also provided that a physical requirement of the position was “climbing on ladders, telephone poles and/or towers.” Skerski’s performance doing exclusively “underground work” was rated superior by his supervisor. Nevertheless, after Time Warner purchased New Channels, Skerski was informed that he could no longer continue working in his modified, no-climbing job. Skerski proposed that he be permitted to work at heights with a “bucket truck.” Time Warner rejected that proposal and, instead, offered Skerski a newly created warehouse position, paying about $7 an hour less than his job as a cable installer. Skerski accepted the transfer “under duress” and subsequently brought suit seeking a return to his modified duty status as an installer technician. ESSENTIAL FUNCTIONS? The court initially found a question of fact as to whether climbing was an “essential function” of the cable installer position. The court recognized that the determination “must be made on a case-by-case basis.” EEOC regulations list three primary factors in distinguishing fundamental job functions, which need not be eliminated, from marginal job functions, including (29 C.F.R. 1630.2(n)(2)): Whether the function is “the reason the position exists.” Whether there are a “limited number of employees available among whom the performance of that job function can be distributed.” Whether the function is “highly specialized so that the incumbent in the position is hired for his or her expertise.” Using that template as a guide, the court found that the first and third factors were not present, inasmuch as “installer technicians are not hired solely to climb or even because of their climbing expertise.” Instead, the court focused upon the “desired result rather than the means of accomplishing it” in finding a question of fact as to whether climbing is an essential function of the position. NOT DISPOSITIVE The court found that Skerski’s employment in the position without having to work at heights for three years raised questions as to whether working at heights was, in fact, an “essential function.” The court said, however, that the fact that Time Warner had previously permitted Skerski to work without performing overhead work for three years “is not relevant to whether his disability can be accommodated.” The court said: “This is because employers are not required to accommodate an employer by removing an essential function. …” That is, if climbing — or working at heights — was found to be an essential function of the cable installer position, Time Warner was not required to eliminate it as a job requirement. The fact that the company did so, going beyond the ADA’s requirements, would not obligate it to continue providing the accommodation. UNDUE HARDSHIP The court then addressed whether, with a reasonable accommodation, Skerski could perform the job as cable installer. Time Warner had rejected Skerski’s proposed accommodation and, instead, offered him the opportunity to transfer to a less desirable position. As noted, the court held that “it is only when the accommodation suggested [by the employee] would constitute an undue hardship that the employer can justify a failure to accommodate in that manner.” It is the final three words “in that manner” that take the Skerski decision beyond the EEOC’s regulations and guidance and, it appears, further than the cases cited as precedent concerning an employer’s obligations in providing a reasonable accommodation. Specifically, the Skerski decision requires that if an employee suggests an accommodation for his or her disability, the employer must accede to the requested accommodation unless it would constitute an undue hardship. This requirement has been specifically rejected by the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship:
“The employer does not have to show that it is an undue hardship to provide the more expensive or difficult accommodation. If more than one accommodation is effective, the preference of the individual with a disability should be given primary consideration. However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.”

The principle that the employer can choose between effective accommodations — without providing the one suggested by the employee — has been applied by the 2nd, 4th, 5th, 7th, 8th and 9th U.S. Circuit Courts of Appeals. The Skerski court cited the 3rd Circuit’s decision in Walton v. Mental Health Ass’n of Southeastern Pa. 168 F.3d 661 (3d Cir. 1999) for the holding that “on the issue of reasonable accommodation, the plaintiff bears only the burden of identifying an accommodation, the cost of which, facially, does not clearly exceed its benefits.” In Walton, however, the employer refused to provide any accommodation, and the court was addressing the employee plaintiff’s burden to avoid summary judgment on the issue of whether any reasonable accommodation was available. Similarly, in Borkowski v. Valley Central Sch. Dist., 63 F.3d 131 (2nd Cir. 1995), also cited by the Skerski court, the employer refused to provide an accommodation, and the 2nd Circuit held that summary judgment could be granted only “in cases in which the plaintiff’s proposal is either ineffective or outlandishly expensive. The statute provides that an employer violates the ADA when it does “not make reasonable accommodations to the known physical or mental limitations of the individual unless the employer can demonstrate that the accommodation would impose an undue hardship”; 42 U.S.C. 12112(b)(5)(A). When an employer fails, or refuses, to provide a reasonable accommodation, the employee bears the burden of demonstrating that there was, in fact, an accommodation that should have been offered. It is then the employer’s burden to prove that the proposed accommodations would be an “undue hardship.” The Skerski court takes that requirement a step further in holding that the employee’s proposed accommodation must be accepted unless it would constitute an undue hardship, even if the employer has another accommodation available. This sweeping requirement appears to conflict with the “interactive process” set forth in Taylor v. Phoenixville School Dist., 184 F.3d 296 (3d Cir. 1999), in which the 3rd Circuit said that an employer could show “good faith” in the interactive process by, in part, showing “some signs of having considered employee’s request and [offering] and [discussing] available alternatives when the request is too burdensome.” The Taylor court specifically referenced the EEOC’s Interpretive Guidelines. ‘REASONABLE’ ACCOMODATION The accommodation proposed by Time Warner, reassignment to a lower-paying position, raises the issue of whether it was “reasonable” under the circumstances. In fact, the court noted that reassignment would not be reasonable if the bucket truck was available. The Skerski case, therefore, does not present two equally effective accommodations. Under these circumstances, the EEOC has consistently stated that reassignment is to be considered when the employee cannot be accommodated in his existing job or if both the employer and the employee agree that reassignment is desired (see the EEOC enforcement guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act). Reassignment, the EEOC enforcement guidance says, “must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship.” Simply put, reassignment is the “accommodation of last resort.” In Skerski, it is unclear whether Time Warner engaged in the “interactive process” or whether it simply rejected Skerski’s proposed accommodation and offered reassignment. This distinction is not discussed. From an employer’s position, the case does not distinguish between the “ineffective” accommodation offered by Time Warner — the equivalent of having provided no accommodation — and an accommodation that would be equally effective to that proposed by the employee. This leaves employers with the choice of granting an employee’s proposed accommodation, which may be inconvenient or expensive without rising to the level of an “undue burden,” or offering an alternative, and presumably less expensive or disruptive, accommodation at the risk of violating the ADA. As always, an employer will be best served by studiously engaging in the ADA’s interactive process and making its decision with the most amount of information available. Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in employment and employee relations law. Steinberg has lectured extensively on all aspects of employment law, including Title VII, the FMLA and the ADA.

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