- Because the 11-month delay in accommodating a man's disability could be viewed as unreasonable, the 7th U.S. Circuit Court of Appeals has reinstated a federal worker's claim of failure to accommodate (McCray v. Department of Veterans Affairs, No. 19-3145 (7th Cir. July 16, 2020)).
- Scott McCray, a mental health case manager for the Department of Veterans Affairs (VA), sued the agency for various forms of workplace discrimination, including failure to accommodate and racial discrimination. McCray, who is African-American, alleged that the van he used to transport VA clients to appointments was hurting his knee and had mechanical issues. After he complained, the department gave him a van that was in worse shape, McCray said. And when a white female co-worker complained about the condition of the vans, all the case managers got new vehicles. McCray asked for an office on a lower floor to accommodate his disabilities, he said. While the department denied his request, it granted that of a white female worker who asked that her office be moved because of a medical condition.
- The magistrate judge dismissed the case, concluding that McCray had been accommodated because he was eventually provided with a new van. The 7th Circuit reinstated the claim, noting that "whether a particular delay is unreasonable turns on the facts of a given case" and a "factfinder might conclude that the 11-month delay in accommodating McCray's disability was unreasonable." The court also observed that replacing the van for one employee was arguably not "an especially complex or burdensome accommodation," as all of the counselors were given new vans.
McCray brought his lawsuit under the Rehabilitation Act, which, as the court noted, requires federal employers to reasonably accommodate the known physical and mental disabilities of a qualified employee and incorporates the standards set by the Americans with Disabilities Act.
The McCray court noted that an unreasonable delay in providing an accommodation for an employee's known disability can amount to a failure to accommodate his disability. Specifically, it argued that whether a particular delay qualifies as unreasonable turns on a number of circumstances, including the employer's good faith in attempting to accommodate the disability, the reasons for the delay and whether the employer offered alternative accommodations.
The Washington, D.C., district court found that an interactive process that took almost two years to complete did not amount to an accommodation denial. The employer, the Department of Education, was able to show that it engaged in the process in good faith and provided a temporary work-from-home accommodation while it ordered special equipment and searched for a vacant position for reassignment. It also kept the employee informed throughout the process, responded promptly to her requests for information and offered alternative accommodations.
Although McCray raised the issue of the van at weekly staff meetings, his supervisors did not initiate any communication about what other accommodations could be made and on what timeline, the court said.
It benefits employers to engage in an interactive, good-faith process to find a workable accommodation, experts say. Doing so may require managers to devote extra time and attention to workers requesting accommodations, but that's appropriate, David K. Fram, the director of ADA and EEO services for the National Employment Law Institute, told attendees at a 2018 conference.