John R. Autry


The Americans with Disabilities Act ("ADA") generally requires employers to "reasonably accommodate" a "qualified" employee's disability. Unfortunately, the ADA is silent as to the appropriate method for fashioning reasonable accommodations. The Equal Employment Opportunity Commission ("EEOC") issued regulations endorsing an "interactive process" by which an employer and its "qualified" disabled employee work together to devise the proper accommodation. However, the Supreme Court has yet to determine whether courts must defer to these regulations, leaving the circuit courts of appeals to issue differing opinions on whether the EEOC's interactive process is best characterized as a requirement or merely a suggestion.

Thus, the circuits appear to be split over the issue of liability for a failure to engage in the EEOC's interactive process. However, upon close examination, there is no circuit conflict. The EEOC regulations are not written in mandatory terms and are best understood as not imposing independent liability for a failure to interact. Further, no circuit truly mandates that employers interact, and the ADA itself would not permit such a mandate. On that basis, while interaction with a disabled employee can prove both prudent and valuable, an employer is not required to interact when fashioning a reasonable accommodation for its disabled employee.