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The federal court-created “reasonable accommodation analysis” is the proper test to use when determining whether an employer has engaged in disability discrimination under the Americans with Disabilities Act, the Pennsylvania Commonwealth Court has ruled in a case of first impression. In so ruling, the court rejected the defendant employer’s suggestion that a burden-shifting test, such as that used to establish discrimination when there is no direct evidence of such behavior, was the proper analysis. Surprisingly, the state courts apparently have never before adopted an analysis for reasonable accommodation. The attorney representing the employee in this novel case, Canteen Corp. v. Pennsylvania Human Relations Commission, said they had merely relied on federal law. “There has been a dearth of case law on reasonable accommodation,” said Geoffrey R. Johnson of Sprague & Sprague, who represented the employee, Sophie Weber. Now, the Commonwealth Court has made it a little easier for attorneys representing clients in similar cases to know what their burden of proof will be. “What they [the Commonwealth Court] have essentially done is, instead of burden-shifting, they are permitting the agency who has the expertise, in this case the PHRC, to use its expertise and look at all the facts and make a determination,” he said. Barbara Rittinger Rigo of Littler Mendelson and Washington, D.C., attorney Thomas P. Dowd represented Canteen. Charles L. Nier was counsel for the PHRC. According to the opinion, written by Commonwealth Court Judge Dan Pellegrini, Weber began working as an accounting clerk for Philadelphia-based vending services supplier Canteen Corp. in 1985. Weber’s job duties included filing documents, carrying folders and envelopes weighing up to 5 pounds, and transferring files from cabinets to boxes, Pellegrini said. Weber suffered a back injury in 1987 and missed five months of work. When she returned to work, Weber brought a doctor’s note saying she should not lift objects weighing 25 pounds or more. Because her job as an accounting clerk did not require heavy lifting, Weber was able to continue performing her job as she had before the injury. Pellegrini said that in 1999, Canteen set out to choose several employees to cross-train to help in the “coin room,” lifting bags of coins weighing up to 20 pounds all day long. Weber was one of the first employees selected, as her accounting clerk duties could easily be performed by other employees. However, Weber voiced concerns about the lifting requirements to Tom Britten, the facility’s general manager. Britten found the 1987 doctor’s note in Weber’s file, and Canteen soon informed Weber that because the note only excluded her from lifting objects weighing 25 pounds or more, she would need an updated doctor’s note if she wanted to avoid lifting the 20-pound bags in the coin room. Weber brought in a note from an orthopedic surgeon, Dr. David Cautilli, which said she should avoid “any lifting or bending activities” secondary to previous disc herniation and arthritis in her lumbar spine. Britten took the note to Canteen’s human resources director, Steven Gaber, who set up a conference call to discuss Weber’s disability. “Gaber read the note over the phone and emphasized that it stated that Weber could not do any lifting or bending, including lifting a pencil or picking up a piece of paper,” Pellegrini said. “He also asked Weber if her current job as an accounting clerk required her to do any lifting or bending, which she acknowledged it did.” Pellegrini said the five- to 10-minute conference call was the only discussion between Weber and management concerning her disability and job status. After the call, Gaber and Britten decided Weber could no longer perform the duties of an accounting clerk as the position required lifting and bending. When Weber arrived at work the next day, she was told she could not continue working at Canteen because the company had no jobs that she could perform safely. Canteen sent Weber short-term disability and family leave forms. She returned the family leave form, having written a statement on it that Canteen told her she was disabled although she was capable of performing her job and that she was terminated. Weber attached another note from Cautilli to the form. The doctor’s note said Weber was able to accept employment immediately, but she should avoid repeated lifting and bending. Canteen said the new letter did not change her status with the company. Weber filed a complaint with the PHRC in March 1999, alleging she was terminated because of her age (more than 60 years old) and disability. The PHRC dismissed the age discrimination claim but issued a finding of probable cause on the disability claim. The case was assigned to a permanent hearing examiner, who found Canteen had engaged in disability discrimination by failing to try to make a good-faith effort to accommodate Weber’s disability. Canteen was ordered to pay Weber six months’ backpay plus prejudgment interest and to offer her the next available position as an accounting clerk or similar position. Canteen appealed to the Commonwealth Court, arguing, in part, that Weber’s discrimination claim should have been analyzed using the burden-shifting provisions of the test created in the 1973 U.S. Supreme Court case McDonnell Douglas Corp. v. Green. As Pellegrini explained, the McDonnell Douglas test is used to establish discrimination indirectly, not to show whether an employer has provided a reasonable accommodation for an injury. It applies to situations in which the employee does not have direct proof of discrimination. The burden of proof falls initially to the employee to show discrimination under the Americans with Disabilities Act. Once the employee meets the test, the burden shifts to the employer to prove a non-discriminatory reason for the termination. However, the test is inapplicable when the employee has direct proof of discrimination, as Weber did, Pellegrini said. Nonetheless, Canteen wanted to apply that burden-shifting aspect of the McDonnell Douglas test to the test that federal courts have laid out for an employee to establish that he or she was discriminated against because of an employer’s failure to make reasonable accommodations. That test, the “reasonable accommodation analysis,” requires the employee to prove: � He or she is a disabled person under the meaning of the ADA. � That he or she is qualified to perform the functions of the job, with or without accommodations. � That he or she has suffered an otherwise adverse employment decision as a result of discrimination. “Unlike the McDonnell Douglas test, though, this test is not a burden-shifting test; instead, it sets forth what an employee needs to establish to make out a prima facie case under the ADA,” Pellegrini explained. The PHRC used the reasonable accommodation analysis when it found that Weber met her burden of proving discrimination, Pellegrini said. The Commonwealth Court agreed with the PHRC’s application of the test. “Although we have never addressed whether this is the proper test applicable to an analysis under the act, we agree that it is the proper one,” Pellegrini wrote. “Because the standard enunciated by the federal courts establishes a direct violation of the act for failing to provide a reasonable accommodation for an employee’s disability, the ‘reasonable accommodation analysis’ is the proper standard to be applied to determine whether an employer has engaged in disability discrimination.” Canteen only asserted that Weber did not meet the second prong of the test, arguing that because she cannot do any lifting or bending, she is not qualified to perform the duties of the job, with or without reasonable accommodations. Looking to federal regulations for guidance, namely 29 C.F.R. § 1630, the Commonwealth Court considered that once an employee asked for a reasonable accommodation for a disability, the employer has an obligation to start an interactive process with that employee to determine his or her limitations and any possible accommodation. Canteen claimed it could not engage in such an interactive process with Weber because she did not specifically request a reasonable accommodation. The Commonwealth Court did not agree. Pellegrini said an employee does not have to use the actual words “reasonable accommodation” when seeking such assistance. “The commission determined, and we agree, that Weber requested a reasonable accommodation when she expressed concern with the lifting requirements of the ‘coin room,’” Pellegrini said. After Weber made her request, Canteen did not engage in the requisite interactive process, and Weber was never given the chance to prove whether she could perform the job with a reasonable accommodation, Pellegrini said. Canteen argued the interactive process would have been useless because Weber asserted that she could not perform any lifting or bending, which were essential functions of the accounting clerk position. Pellegini said the employer was wrong, pointing out the short conference call, which was its only discussion with Weber regarding her disability, Weber’s second doctor’s note, which said she could perform some bending and lifting, and that bending and lifting were not “essential” functions of Weber’s job. “In the end, Canteen and Weber may have discovered that no reasonable accommodation was possible; however, if the interactive process is never initiated, a potential resolution may never be determined,” Pellegrini said.

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