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Employers Must Be Creative on ADA Accommodations, Says 3rd Circuit
Court says 'inconvenience' not enough to reject employee's proposal
Shannon P. Duffy
The Legal Intelligencer

July 10, 2001


Employers are legally required to think "creatively" in order to comply with the Americans with Disabilities Act and cannot simply say that a disabled worker's proposal for a reasonable accommodation would have been "inconvenient," a federal appeals court has ruled.

The decision by the 3rd U.S. Circuit Court of Appeals in Skerski v. Time Warner Cable Co. revives an ADA suit brought by a cable installer who said he was no longer able to climb due to panic attacks and that his employer refused to provide him with a "bucket truck" that would have allowed him to keep doing his job.

Even though there was a bucket truck available, Larry Skerski said, Time Warner instead demoted him to a much lower-paying job.

Federal Judge Donetta W. Ambrose of the U.S. District Court for the Western District of Pennsylvania dismissed the suit after finding that climbing was an "essential function" of a cable installer's job.

Now the 3rd Circuit has reversed that ruling, saying a jury must decide if climbing is truly an essential function since Skerski was allowed to keep the job for more than a year with all his assignments limited to working underground.

But the most important aspect of Monday's ruling came in the court's discussion of an employer's duty to consider reasonable accommodations.

"Time Warner's defense in this case has been, in essence, that it would have been 'inconvenient' for it to make the adjustments needed to retain Skerski in the position that he previously had. However, the ADA was enacted to compel employers to look deeper and more creatively into the various possibilities suggested by an employee with a disability," 3rd Circuit Judge Dolores K. Sloviter wrote.

"It is only when the accommodation suggested would constitute an undue hardship that the employer can justify failure to accommodate in that manner," Sloviter wrote in an opinion joined by Judges Jane R. Roth and Marjorie O. Rendell.

An expert in employment law said she believes the 3rd Circuit has broken new ground by imposing such a strong duty on employers.

Attorney Alice Ballard, who has no connection to Skerski's case, said the 3rd Circuit has long been a leader in describing the duties that the ADA imposes -- both on employers and employees -- and that Skerski's case articulates a new one.

Ballard said the decision appears to require that an employer accept a worker's proposal for a reasonable accommodation unless doing so would be an "undue hardship."

In previous cases, Ballard said, the 3rd Circuit has held that both the employer and the worker have a duty to engage in an "interactive process" in which possible reasonable accommodations are considered.

But until now, Ballard said, employers have not had the duty to go along with the worker's first proposal, even if it is reasonable. Instead, she said, the lower courts have held that the employer has the right to counter with its own reasonable proposal which will "trump" the worker's proposal if it, too, is reasonable.

In Skerski's case, Ballard said, the 3rd Circuit has redefined the interactive process by putting the burden on the employer to articulate how the worker's proposal would impose an undue hardship before it can reject it.

EMPLOYMENT HISTORY

Skerski was hired in 1982 by Time Warner's predecessor, New Channels, to upgrade cable converters in customers' homes. Several months later, he was trained and began working as a cable service technician to install and disconnect cable television service.

As part of his job, Skerski serviced cable wires at aerial cable plants -- a job that required him to climb ladders, poles and towers, and work at heights.

In May 1993, more than 10 years after he began working as an installer, Skerski began experiencing dizziness, nausea and irregular heartbeats while working at heights. In June 1993, he was diagnosed as having a panic and anxiety disorder, and a psychologist recommended that he stop working at heights.

Skerski's supervisor modified his job so that all of his work was underground.

Even after New Channels was acquired by Time Warner in March 1995, Skerski's modified duties continued until January 1997. But ultimately, Skerski's new Time Warner boss told him that he could not continue as an installer if he could not climb on the job.

Skerski testified that he told the new boss that he could resume climbing "with an accommodation," and asked if he could have a bucket truck, which he had used before successfully, even after his panic disorder was diagnosed.

But the boss refused, Skerski said, and informed him that "you need to be 100 percent."

Although Time Warner intended to fire him, it later offered Skerski an alternative job in a newly created warehouse position that paid considerably less than the technician position -- $12.50 per hour in the warehouse compared to the $19.45 per hour he had received as an installer.

Skerski accepted the warehouse position, but said he did so "only under duress," and because Time Warner was threatening him with termination.

Soon after beginning the warehouse position in early February 1997, Skerski injured his back while lifting and has been receiving workers' compensation benefits ever since.

ESSENTIAL FUNCTION

In Monday's decision, Judge Sloviter found that a jury must decide if climbing is truly an essential function of the cable installer's job.

If it isn't, Sloviter found that Skerski must be allowed to argue that he was denied a reasonable accommodation in the form of a bucket truck that would allow him to continue working at heights.

Although Time Warner rejected that proposition, Sloviter found that Skerski had testified that a bucket truck was available and that Time Warner hadn't contested that fact.

Time Warner's lawyer instead argued that providing Skerski with a bucket truck would have been "clearly ineffective" since his own doctor said that Skerski's panic disorder completely prevents him from working at heights.

Courts have rejected ADA cases, Time Warner argued, where the plaintiff's proposed accommodation was unreasonable because it would require the plaintiff to undertake activity that his own doctors had deemed "unsafe."

Sloviter disagreed, saying a jury may have to decide whether providing Skerski with a bucket truck would have been a reasonable accommodation.

"There does not appear to have been much, if any, attention devoted to this issue in the proceedings before the District Court. The court did not refer to a bucket truck in its opinion, and the only references in the record to the possibility of its use were Skerski's testimony in his deposition that he proposed this alternative to Time Warner and that Time Warner owned bucket trucks at the time," Sloviter said.

In the end, Sloviter said, Time Warner's reliance on the doctor's letter may "carry the day."

But Skerski's lawyer made a good point, she said, that the doctor "has never been questioned, much less cross-examined, as to whether a bucket truck was a viable alternative, or the circumstances under which Skerski might have been able to use a bucket truck."

"If the jury were to find that the bucket truck was a reasonable accommodation, the reassignment to the warehouse position did not satisfy the requirements of the ADA," Sloviter wrote.

Skerski was represented in the appeal by attorneys William A. Penrod and Susan A. Meredith of Caroselli Beachler McTiernan & Conboy in Pittsburgh.

Time Warner was represented by William G. Merchant of Papernick & Gefsky in Monroeville, Pa.