Friday, December 13, 2013

No Nexus Required Between an Employee’s Requested Accommodation and the Ability of the Employee to Perform the Essential Functions of the Position

On September 16, 2013, the U.S. Court of Appeals for the Fifth Circuit reversed a lower court’s grant of summary judgment for the employer on the question of whether a nexus must exist between an employee’s request for accommodation and that employee’s ability to perform her essential job functions. The case, Feist v. Louisiana Department of Justice, 740 F.3d 450 (5th Cir. 2013), is a reminder to employers and disabled employees alike that reasonable accommodations can exist outside of those that permit the employee to perform her essential job functions. 

Pauline Feist was an assistant attorney general with the Louisiana Department of Justice. She suffered from osteoarthritis in her knee, which limited her ability to walk long distances. She requested, as an accommodation for her disability under the Americans with Disabilities Act (ADA), a free, reserved parking spot in front of her office building. Id. at 450. When her employer denied her request, she filed an ADA charge with the EEOC. She was later terminated for poor performance, and amended her charge to include retaliation for exercising her rights under the ADA. Id.

The district court granted summary judgment for the employer on both the discrimination and retaliation charges. See Feist v. Louisiana, No. 12-cv-31065 (E.D. La. 2012). The district court held that Ms. Feist could not demonstrate that the accommodation she requested was reasonable because she could not show that the parking situation at her office was limiting her ability to perform the essential functions of the job – namely, the sedentary office work attorneys normally perform. Ms. Feist appealed.

The Fifth Circuit, in an opinion by now-retired Judge Fortunato Benavides, looked to the ADA’s implementing regulations to determine the scope of a possible reasonable accommodation. The regulations allowed for three categories of reasonable accommodations, two of which did not reference performance of essential functions at all. Id. at 452; see 29 C.F.R. § 1630.2(o)(1) (defining a reasonable accommodation as “(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or … (iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment that are enjoyed by its other similarly situated employees without disabilities”). The Fifth Circuit also noted that EEOC guidance expressly allowed employers to provide reserved parking spaces as reasonable accommodations in certain circumstances. See Feist, 730 F.3d at 452.

The Fifth Circuit held that the district court erred in requiring a link between the reasonable accommodation and the employee’s performance of the essential functions of her job, as the ADA and its accompanying regulations did not require such a link. Id. On the discrimination claim, the court vacated and remanded the claim to the district court. The court then affirmed the grant of summary judgment on the retaliation claim, as Ms. Feist could not show that the employer’s non-retaliatory reasons for her termination were pretextual. Id. at 453.

The Fifth Circuit’s decision on the discrimination claim in Feist demonstrates both the variety of possible reasonable accommodations for employees and the tendency of some employers to narrow those possible accommodations further than what is allowed under the ADA. Advocates of employees should not waver in referencing the broad ADA regulations allowing for reasonable accommodations. 

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