Dented Cars, Reasonable Accommodation and Choices
This past week has been hot and humid here in the Northeast, so I parked my almost pristine 10-year- old car in my driveway, under the shade of a giant oak tree. I hardly ever park there on a sunny day, choosing instead to park some distance away under the shadow of another tree. And that is how it started: I had decided to do something a little out of my normal, out of what others expected of me.
The Volkswagen was a birthday gift from my wife, Karen. She had often witnessed the calm that came over me when I thought back on the first car I bought in the late 60’s, a car that had created many fond memories for me in Southern California. The VW is in such good shape because I don’t drive it often, and somehow it has avoided collisions with anything other than an occasional acorn.
Now, Karen and I have been under a lot of pressure the past couple of years and, in particular, the last seven months. We choose to follow our dreams, have faith in each other, and take chances with our business. What we didn’t anticipate was the burden (a small word in comparison to the weight of the object) of an unexpected charlatan from our past. This has given rise to the age-old question, “Why do bad things happen to good people?”
I say this because Karen had good reason to be distracted when she backed out of the garage. I had placed an obstacle in her path that was outside of her experience of me. She knew my old habits; she was not prepared for me to do something out of the ordinary.
My car and hers met in a noisy get-together! I was sitting on our quiet porch, on the other side of the house, preparing documents to go to court. I knew she was leaving to drive into town. And I knew the extremely loud sound I heard as she pulled away was different. And I proved my hearing is pretty decent.
The circumstances of the collision of our two cars is not unlike the occasional request for reasonable accommodation one receives from the co-worker who is known for being a certain way…including having their attitude parked in the same predictable parking place. If you get my drift, you know that I am saying sometimes we need to deal with people are who predictably not that pleasant to deal with. And, given our normal behavior we “back out of the garage” under the “normal circumstance” of not really needing to look behind us because there is never anything there. (I do exactly the same thing with Karen’s car!)
The problem with this is that under Title I of the ADA, we are saddled with approaching each new request for accommodation with the fresh intention of serving the individual making the request. You, as a human resource professional, are expected to set aside your knowledge of how that individual has “parked” their attitude in the past in order to respond effectively to the request. Under “the law” the requester and the company are each responsible for the success of the process. If the employee or applicant doesn’t participate fully, the accommodation process and employment, can come to a halt. The problem is that if we are seen as not doing everything we can to make the request a success, even in the light of a bad parking job, we pay the financial price of noncompliance. It’s not fair, but it’s real.
The way to avoid the cost of noncompliance to a request for accommodation is to have a standardized process that guides the employee, the supervisor, and the human resource team through the process of complying with your duties under the law. If you faithfully document the core of the compliance process, that is, the interactive conversation, you may have an unpleasant experience, but will have the documentation you need to convince an EEOC investigator to conclude a complaint in your favor.
-Roy
