One accommodation not enough under ADA, Ninth Circuit rules.

An employer has a duty under the Americans with Disabilities Act (ADA) to explore other ways of accommodating a worker's disability if the first accommodation fails, the Ninth Circuit recently ruled. (Humphrey v. Memorial Hospitals Association, No. 98-15404, 2001 WL 118432 (9th Cir. Feb. 13, 2001).)

The unanimous three-judge panel, citing a case that the Ninth Circuit decided previously, said an employer's duty to accommodate a disability "is a `continuing duty' that is `not exhausted by one effort.'" (McAlindin v. County of San Diego, 192 F.3d 1226, 1237 (9th Cir. 1999); Case Involving Impotence Tests Bounds of the ADA, TRIAL, Dec. 1999, at 80.)

The plaintiff, Carolyn Humphrey, worked as a medical transcriptionist at Memorial Hospitals in Modesto, California, from 1986 until she was fired in 1995. In 1989, she began arriving at work late, or not at all. She said that she engaged in obsessive grooming rituals--such as washing her hair for up to an hour and washing it again if it didn't feel "right"--that made it difficult for her to arrive at work on time.

She also felt compelled to dress slowly, to repeatedly check that she had necessary work papers, and to pull out strands of her hair and examine them closely because she felt something crawling on her scalp. At times, Humphrey engaged in the obsessive rituals for several hours, sometimes from morning to evening.

In June 1994, Humphrey received a disciplinary warning that cited her excessive tardiness and absenteeism. She received another in December 1994, and a third soon after. Except for her attendance problems, according to performance evaluations, Humphrey's work was excellent and consistently exceeded the hospital's standards.

In May 1995, she was diagnosed with obsessive-compulsive personality disorder (OCD). Humphrey's psychiatrist sent her supervisor a letter explaining that the disorder "directly contribut[ed] to her problems with lateness." The psychiatrist wrote that the condition was treatable over time and that he believed Humphrey qualified for protection under the ADA. He added that Humphrey should take a leave of absence if her condition did not improve.

In June 1995, Humphrey met with her supervisor and a nurse with the hospital's employee assistance program (EAP) to discuss accommodations for her disability. They agreed on a flexible work schedule that would allow Humphrey to arrive at work any time within a 24-hour period.

But she continued to miss work, and neither Humphrey's supervisor nor the EAP nurse suggested modifying the accommodation. In September 1995, Humphrey asked for permission to work from home, as other transcriptionists at the hospital did.

The hospital denied the request because of the disciplinary warnings Humphrey had received. It did not suggest an alternative accommodation, indicate that it would re-assess the unsuccessful accommodation, or offer her a leave of absence as her psychiatrist suggested.

Humphrey was fired in October 1995. She asked if she might take a leave of absence instead of losing her job, but the hospital refused.

In September 1996, Humphrey brought suit against the hospital under the ADA and its California counterpart, the Fair Employment and Housing Act (FEHA), claiming wrongful termination and failure to reasonably accommodate her disability. The U.S. District Court for the Eastern District of California granted summary judgment for the hospital.

Reversing, the Ninth Circuit held that the employer's obligation to reasonably accommodate a disability under the ADA "extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed."

Judge Stephen Reinhardt wrote, "This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work." The opinion also noted that the ADA does not require an employee to show that an accommodation is certain or even likely to be successful to prove that it is a reasonable one.

The appeals court also addressed the hospital's allegation that Humphrey was not disabled because she was not substantially limited in one or more major life activities, as the ADA requires. Reinhardt wrote, "[C]aring for oneself is a major life activity.... The facts are undisputed with regard to Humphrey's ability to care for herself."

Attorney Jerry Budin of Modesto represented Humphrey. "This case emphasizes that mental disabilities deserve the same protection under the ADA as physical disabilities," he said. "Individuals with mental disabilities should not be relegated to second-class status. Millions of Americans suffer from depression, schizophrenia, obsessive-compulsive disorder, and other mental illnesses, some mild, others disabling. Accommodating individuals with these disabilities serves the primary purpose of the ADA: to allow talented and well-trained workers to stay on the job rather than forcing them to rely on the welfare safety net, meager as it may be."