As regular readers of this blog know, the Equal Employment Opportunity Commission’s focus on disability discrimination – and the circumstances under which a reasonable accommodation of a disability needs to be made – has been in the news several times in 2013. While the question of whether leave is a reasonable accommodation may be the one we hear about the most, employers frequently get unusual or unique accommodation requests.  For instance, must an employer consider an employee’s request for free onsite parking as a reasonable accommodation?  That question was recently addressed by the Fifth Circuit Court, and the decision of the Court is a useful reminder for employers everywhere.  

Before taking a look at the Court’s opinion, remember the basic tenet of accommodations under the ADA: Employers are required to attempt to make a reasonable accommodation to known physical or mental limitations of an otherwise qualified individual with a disability unless doing so is an undue hardship.  Most employers understand this obligation as something which relates to an individual’s ability to do the essential functions of his or her job. 

The ADA, however, also requires employers to consider any other modification or adjustment that would enable an employee to enjoy equal benefits and privileges of employment, compared to the benefits and privileges enjoyed by similarly-situated employees without a disability.  This is a broad obligation which only is limited by the creativity of the individual advancing the ADA claim. 

The State of Louisiana learned this lesson the hard way in Feist vs. State of Louisiana.  In that case, an attorney for the state alleged that her termination violated the ADA when Louisiana would not meet her demand for free onsite parking as an accommodation to her disability – osteoarthritis of the knee.  The District Court which originally decided the case stated that there must be a link between the requested accommodation and the essential functions of the job of being an attorney.  Because the attorney could not explain how the denial of free onsite parking limited her ability to perform the essential functions of her job as an attorney, it dismissed her suit.  On appeal, however, the Fifth Circuit reversed the District Court and sent the case back, reminding the State of Louisiana that a reasonable accommodation isn’t something that must strictly relate to the essential functions of a job in order to be required by the ADA. 

Whether this creative attorney ultimately will be able to show a connection between free onsite parking and the benefits of state employment enjoyed by other state attorneys without a disability remains to be seen, but employers everywhere would be wise not to follow the lead of the State of Louisiana in this case.  As employers spend so much time examining particular jobs and responsibilities to assess whether a reasonable accommodation to do work is feasible, it’s easy to forget that employees with disabilities are entitled to benefits and privileges of employment equal to those enjoyed by other similarly-situated employees without disabilities.  This includes parking, restrooms, workplace perks, and similar benefits.  

Because trying to determine whether a particular benefit, privilege, or function of a job may be considered appropriate for potential accommodation is almost always done on a case-by-case basis, questions in this area are usually best served by consultation with competent counsel, regardless of whether your employee is an attorney.

Allison Williams focuses her practice in the area of labor and employment law, litigation, and higher education law. Ms. Williams' practice includes cases pending in state and federal courts, as well as actions pending before the West Virginia Public Employees Grievance Board, the West Virginia Human Rights Commission, and the Equal Employment Opportunity Commission.
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