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9 PJI 1.3 | Third Circuit (US)
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11In this case [plaintiff] claims that [defendant] failed to provide a reasonable accommodation for [plaintiff]. The ADA provides that an employer [may not deny employment opportunities to a qualified individual with a disability if that denial is based on the need of the employer to make reasonable accommodations to that individual’s disability] [must make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business].

To prevail on this claim, [plaintiff] must prove all of the following by a preponderance of the evidence:

First: [Plaintiff] has a “disability” within the meaning of the ADA.

Second: [Plaintiff] is a “qualified individual” able to perform the essential functions of [specify the job or position sought] with reasonable accommodation.

Third: [Defendant] was informed of the need for an accommodation of [plaintiff] due to a disability. [Note that there is no requirement that a request be made for a particular or specific accommodation; it is enough to satisfy this element that [defendant] was informed of [plaintiff’s] basic need for an accommodation.]

Fourth: Providing [specify the accommodation(s) in dispute in the case] would have been reasonable, meaning that the costs of that accommodation would not have clearly exceeded its benefits.

Fifth: [Defendant] failed to provide [specify the accommodation(s) in dispute in the case] or any other reasonable accommodation.

[I will now provide you with more explicit instructions on the following statutory terms:

1. “Disability.” — See Instruction 9.2.1

2. “Qualified” — See Instruction 9.2.2 ]

[In deciding whether [plaintiff] was denied a reasonable accommodation, you must keep in mind that [defendant] is not obligated to provide a specific accommodation simply because it was requested by [plaintiff]. [Plaintiff] may not insist on a particular accommodation if another reasonable accommodation was offered. The question is whether [defendant] failed to provide any reasonable accommodation of [plaintiff’s] disability.]

In general, an accommodation is a change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. In the context of this case, this means [set forth any of these three definitions that are relevant in light of the evidence] [accommodations that are required to ensure equal opportunity in the application process;] [accommodations that enable the employer's employees with disabilities to perform the essential functions of the position held or desired] [accommodations that enable the employer's employees with disabilities to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities]. Examples of such reasonable accommodations include, but are not limited to, the following:

[Set forth any of the following that are supported by the evidence:

● Modifying or adjusting a job application process to enable a qualified applicant with a disability to be considered for the position;

● Making existing facilities used by employees readily accessible to and usable by [plaintiff];

● Job restructuring;

● Part-time or modified work schedule;

● Reassignment to a vacant position for which [plaintiff] is qualified;

● Acquisition or modifications of equipment or devices;

● Appropriate adjustment or modifications of examinations, training materials, or policies;

● Provision of qualified readers or interpreters; and

● Other similar accommodations for individuals with [plaintiff’s] disability.]

Note, however, that a “reasonable accommodation” does not require [defendant] to do any of the following:

[Set forth any of the following that are raised by the evidence:

● Change or eliminate any essential function of employment;

● Shift any essential function of employment to other employees;

● Create a new position for [plaintiff];

● Promote [plaintiff];

● Reduce productivity standards; or

● Make an accommodation that conflicts with an established [seniority system] [other neutral employment policy], unless [plaintiff] proves by a preponderance of the evidence that “special circumstances” make an exception reasonable. For example, an exception might be reasonable (and so “special circumstances” would exist) if exceptions were often made to the policy. Another example might be where the policy already contains its own exceptions so that, under the circumstances, one more exception is not significant.]

[On the other hand, [defendant’s] accommodation is not “reasonable” under the ADA if [plaintiff] was forced to change to a less favorable job and a reasonable accommodation could have been made that would have allowed [plaintiff] to perform the essential functions of the job that [he/she] already had. [Nor is an accommodation to a new position reasonable if [plaintiff] is not qualified to perform the essential functions of that position.]]

[For use where a jury question is raised about the interactive process:

The intent of the ADA is that there be an interactive process between the employer and the employee [applicant] in order to determine whether there is a reasonable accommodation that would allow the employee [applicant] to perform the essential functions of a job. Both the employer and the employee [applicant] must cooperate in this interactive process in good faith, once the employer has been informed of the employee’s [applicant’s] request for a reasonable accommodation.

Neither party can win this case simply because the other did not cooperate in an interactive process. But you may consider whether a party cooperated in this process in good faith in evaluating the merit of that party’s claim that a reasonable accommodation did or did not exist. ]

[For use where a previous accommodation has been provided:

The fact that [defendant] may have offered certain accommodations to an employee or employees in the past does not mean that the same accommodations must be forever extended to [plaintiff] or that those accommodations are necessarily reasonable under the ADA. Otherwise, an employer would be reluctant to offer benefits or concessions to disabled employees for fear that, by once providing the benefit or concession, the employer would forever be required to provide that accommodation. Thus, the fact that an accommodation that [plaintiff] argues for has been provided by [defendant] in the past to [plaintiff], or to another disabled employee, might be relevant but does not necessarily mean that the particular accommodation is a reasonable one in this case. Instead, you must determine its reasonableness under all the evidence in the case.]

[For use when there is a jury question on “undue hardship”:

If you find that [plaintiff] has proved the five elements I have described to you by a preponderance of the evidence, then you must consider [defendant’s] defense. [Defendant] contends that providing an accommodation would cause an undue hardship on the operation of [defendant’s] business. Under the ADA, [defendant] does not need to accommodate [plaintiff] if it would cause an “undue hardship” to its business.

Defendant must prove to you by a preponderance of the evidence that [describe accommodation] would be an “undue hardship.” The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors [list all of the factors set out below that are relevant in light of the evidence]:

● The nature and cost of the accommodation.12

● [Defendant’s] overall financial resources. This might include the size of its business, the number of people it employs, and the number, type and location of its facilities.

● The financial resources of the facility where the accommodation would be made, the number of people who work there and the effect on expenses and resources.

● The way that [defendant] conducts its operations. This might include its workforce structure; the location of its facility where the accommodation would be made compared to [defendant’s] other facilities; and the relationship between or among those facilities.

● The impact of (specify accommodation) on the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

[List any other factors supported by the evidence.]

If you find that [defendant] has proved by a preponderance of the evidence that [specify accommodation] would be an undue hardship, then you must find for [defendant].]

COMMENT This instruction is derived from 42 U.S.C. § 12111; id. § 12112; 29 C.F.R. § 1630.2 (2019); U.S. Equal Emp. Opportunity Comm’n, Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. pt. 1630, App. 1630.2; caselaw as discussed below; and 3C Kevin F. O’Malley, et al., Fed. Jury Prac. & Instr. § 172:21 (6th ed.).

The basics of an action for reasonable accommodation under the ADA13 were set forth by the Third Circuit in Skerski v. Time Warner Cable Co., 257 F.3d 273 (3d Cir. 2001).

[A] disabled employee may establish a prima facie case under the ADA if s/he shows that s/he can perform the essential functions of the job with reasonable accommodation and that the employer refused to make such an accommodation. According to the ADA, a "reasonable accommodation" includes:
job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. 42 U.S.C. § 12111(9)(B). The relevant regulations define reasonable accommodations as "modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position." 29 C.F.R. § 1630.2(o)(1)(ii).

Skerski, 257 F.3d at 284. See also Colwell v. Rite Aid Corp., 602 F.3d 495, 505 (3d Cir. 2010) (“[U]nder certain circumstances the ADA can obligate an employer to accommodate an employee's disability-related difficulties in getting to work, if reasonable.”).

In Skerski the employee was a cable worker, and the employer’s job description for that position listed climbing poles as one of the job requirements. The employee developed a fear of heights and he was transferred to a warehouse position. The employer argued that this was a reasonable accommodation for the employee’s disability, because he would not have to climb in his new position. But the court noted that a transfer to a new position is not a reasonable accommodation if the employee is not qualified to perform the essential functions of that position (and there was evidence, precluding summary judgment, indicating that the plaintiff was not so qualified). It further noted that reassignment "should be considered only when accommodation within the individual's current position would pose an undue hardship." The court relied on the commentary to the pertinent EEOC guideline, which states that "an employer may reassign an individual to a lower graded position if there are no accommodations that would enable the employee to remain in the current position and there are no vacant equivalent positions for which the individual is qualified with or without reasonable accommodation." The court concluded that there was a triable question of fact as to whether the plaintiff could have been accommodated in his job as a cable worker, by the use of a bucket truck so that he would not have to climb poles. The instruction is written to comport with the standards set forth in Skerski. In defining the concept of “reasonable accommodation,” the Instruction draws from the implementing regulation, 29 C.F.R. § 1630.2(o)(1) & (2) (2019), and the EEOC’s interpretive guidance, 29 C.F.R. § Pt. 1630, App. 1630.2(o) (2019). The Instruction’s optional discussion for use where a previous accommodation has been provided is modeled loosely on 3C Kevin F. O’Malley, et al., Fed. Jury Prac. & Instr. § 172:21 (6th ed.).

Allocation of Burdens—Reasonable Accommodation and the Undue Hardship Defense

In Walton v. Mental Health Ass'n of Southeastern Pa., 168 F.3d 661, 670 (3d Cir. 1999), the Third Circuit held that, "on the issue of reasonable accommodation, the plaintiff bears only the burden of identifying an accommodation, the costs of which, facially, do not clearly exceed its benefits." If the plaintiff satisfies that burden, the defendant then has the burden to demonstrate that the proposed accommodation creates an "undue hardship" for it. 42 U.S.C. § 12112(b)(5)(A). See Turner v. Hershey Chocolate USA, 440 F.3d 604, 614 (3d Cir. 2006) (“undue hardship” is an affirmative defense). The ADA defines "undue hardship" as "an action requiring significant difficulty or expense, when considered in light of" a series of factors, 42 U.S.C. § 12111(10)(A). The instruction sets forth the list of factors found in the ADA.

The Walton court justified its allocation of burdens as follows:
This distribution of burdens is both fair and efficient. The employee knows whether her disability can be accommodated in a manner that will allow her to successfully perform her job. The employer, however, holds the information necessary to determine whether the proposed accommodation will create an undue burden for it. Thus, the approach simply places the burden on the party holding the evidence with respect to the particular issue. The instruction follows the allocation of burdens set forth in Walton. See also Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 770 (3d Cir. 2004) (in a transfer case, the employee must show “(1) that there was a vacant, funded position; (2) that the position was at or below the level of the plaintiff's former job; and (3) that the plaintiff was qualified to perform the essential duties of this job with reasonable accommodation. If the employee meets his burden, the employer must demonstrate that transferring the employee would cause unreasonable hardship.”).

For a case in which the employee did not satisfy his burden of showing a reasonable accommodation, see Gaul v. Lucent Technologies Inc., 134 F.3d 576, 581 (3d Cir. 1998). The employee had an anxiety disorder, and argued essentially that he could be accommodated by placement with other employees who wouldn’t stress him out. The court analyzed this contention in the following passage:
[W]e conclude that Gaul has failed to satisfy his burden for three reasons. First, Gaul's proposed accommodation would impose a wholly impractical obligation on AT & T or any employer. Indeed, AT & T could never achieve more than temporary compliance because compliance would depend entirely on Gaul's stress level at any given moment. This, in turn, would depend on an infinite number of variables, few of which AT & T controls. Moreover, the term "prolonged and inordinate stress" is not only subject to constant change, it is also subject to tremendous abuse. The only certainty for AT & T would be its obligation to transfer Gaul to another department whenever he becomes "stressed out" by a coworker or supervisor. It is difficult to imagine a more amorphous "standard" to impose on an employer.

Second, Gaul's proposed accommodation would also impose extraordinary administrative burdens on AT &T. In order to reduce Gaul's exposure to coworkers who cause him prolonged and inordinate stress, AT & T supervisors would have to consider, among other things, Gaul's stress level whenever assigning projects to workers or teams, changing work locations, or planning social events. Such considerations would require far too much oversight and are simply not required under law.

Third, by asking to be transferred away from individuals who cause him prolonged and inordinate stress, Gaul is essentially asking this court to establish the conditions of his employment, most notably, with whom he will work. However, nothing in the ADA allows this shift in responsibility....

In sum, Gaul does not meet his burden... because his proposed accommodation was unreasonable as a matter of law. Therefore, Gaul is not a "qualified individual" under the ADA, and AT & T's alleged failure to investigate into reasonable accommodation is unimportant.

In US Airways, Inc., v. Barnett, 535 U.S. 391, 397 (2002), the Court rejected the proposition that an accommodation cannot be reasonable whenever it gives any preference to the disabled employee. The Court concluded that “preferences will sometimes prove necessary to achieve the Act's basic equal opportunity goal.” It elaborated as follows:
The Act requires preferences in the form of "reasonable accommodations" that are needed for those with disabilities to obtain the same workplace opportunities that those without disabilities automatically enjoy. By definition any special "accommodation" requires the employer to treat an employee with a disability differently, i.e., preferentially. And the fact that the difference in treatment violates an employer's disability-neutral rule cannot by itself place the accommodation beyond the Act's potential reach.

Were that not so, the "reasonable accommodation" provision could not accomplish its intended objective. Neutral office assignment rules would automatically prevent the accommodation of an employee whose disability-imposed limitations require him to work on the ground floor. Neutral "break-from-work" rules would automatically prevent the accommodation of an individual who needs additional breaks from work, perhaps to permit medical visits. Neutral furniture budget rules would automatically prevent the accommodation of an individual who needs a different kind of chair or desk. Many employers will have neutral rules governing the kinds of actions most needed to reasonably accommodate a worker with a disability. See 42 U.S.C. § 12111(9)(b) (setting forth examples such as "job restructuring," "part-time or modified work schedules," "acquisition or modification of equipment or devices," "and other similar accommodations"). Yet Congress, while providing such examples, said nothing suggesting that the presence of such neutral rules would create an automatic exemption. Nor have the lower courts made any such suggestion.

... The simple fact that an accommodation would provide a "preference" -- in the sense that it would permit the worker with a disability to violate a rule that others must obey -- cannot, in and of itself, automatically show that the accommodation is not "reasonable."
Seniority Plans and Other Disability-Neutral Employer Rules

While rejecting the notion that preferences were never reasonable, the Barnett Court recognized that employers have a legitimate interest in preserving seniority programs, and found that the ADA generally does not require an employer to “bump” a more senior employee in favor of a disabled one. The Court found “nothing in the statute that suggests Congress intended to undermine seniority systems in this way. And we consequently conclude that the employer's showing of violation of the rules of a seniority system is by itself ordinarily sufficient” to show that the suggested accommodation would not be reasonable. The Court held that if a proposed accommodation would be contrary to a seniority plan, the plaintiff would have the burden of showing “special circumstances” indicating that the accommodation was reasonable. The Court explained as follows:
The plaintiff (here the employee) nonetheless remains free to show that special circumstances warrant a finding that, despite the presence of a seniority system (which the ADA may not trump in the run of cases), the requested "accommodation" is "reasonable" on the particular facts.... The plaintiff might show, for example, that the employer, having retained the right to change the seniority system unilaterally, exercises that right fairly frequently, reducing employee expectations that the system will be followed -- to the point where one more departure, needed to accommodate an individual with a disability, will not likely make a difference. The plaintiff might show that the system already contains exceptions such that, in the circumstances, one further exception is unlikely to matter. We do not mean these examples to exhaust the kinds of showings that a plaintiff might make. But we do mean to say that the plaintiff must bear the burden of showing special circumstances that make an exception from the seniority system reasonable in the particular case. And to do so, the plaintiff must explain why, in the particular case, an exception to the employer's seniority policy can constitute a "reasonable accommodation" even though in the ordinary case it cannot. 535 U.S. at 404.

The Third Circuit, in Shapiro v. Township of Lakewood, 292 F.3d 356, 361 (3d Cir. 2002), held that the Barnett analysis was applicable any time that a suggested accommodation would conflict with any disability-neutral rule of the employer (in that case a job application requirement). The Court summarized the Barnett analysis as follows:
It therefore appears that the Barnett Court has prescribed the following two-step approach for cases in which a requested accommodation in the form of a job reassignment is claimed to violate a disability-neutral rule of the employer. The first step requires the employee to show that the accommodation is a type that is reasonable in the run of cases. The second step varies depending on the outcome of the first step. If the accommodation is shown to be a type of accommodation that is reasonable in the run of cases, the burden shifts to the employer to show that granting the accommodation would impose an undue hardship under the particular circumstances of the case. On the other hand, if the accommodation is not shown to be a type of accommodation that is reasonable in the run of cases, the employee can still prevail by showing that special circumstances warrant a finding that the accommodation is reasonable under the particular circumstances of the case. The Interactive Process

The ADA itself does not specifically provide that the employer has an obligation to engage in an interactive process with the employee to determine whether a reasonable accommodation can be found for the employee’s disability. But the Third Circuit has established that good faith participation in an interactive process is an important factor in determining whether a reasonable accommodation exists. The court in Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 772 (3d Cir. 2004) explained the interactive process requirement as follows:

[W]e have repeatedly held that an employer has a duty under the ADA to engage in an "interactive process" of communication with an employee requesting an accommodation so that the employer will be able to ascertain whether there is in fact a disability and, if so, the extent thereof, and thereafter be able to assist in identifying reasonable accommodations where appropriate. "The ADA itself does not refer to the interactive process," but does require employers to "make reasonable accommodations" under some circumstances for qualified individuals. Shapiro v. Township of Lakewood, 292 F.3d 356, 359 (3d Cir. 2002). With respect to what consists of a "reasonable accommodation," EEOC regulations indicate that,
to determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. § 1630.2(o)(3).

See also Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000) ("Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.") (quoting 29 C.F.R. Pt. 1630, App. § 1630.9).

An employee can demonstrate that an employer breached its duty to provide reasonable accommodations because it failed to engage in good faith in the interactive process by showing that “1) the employer knew about the employee's disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faith.” Taylor v. Phoenixville School Dist., 184 F.3d 296, 319-20 (3d Cir. 1999).

The failure to engage in an interactive process is not sufficient in itself to establish a claim under the ADA, however. See Hohider v. United Parcel Service, Inc., 574 F.3d 169, 193 (3d Cir. 2009) (failure to engage in interactive process with an employee who is not a “qualified individual” does not violate ADA). For one thing, a “plaintiff in a disability discrimination case who claims that the defendant engaged in discrimination by failing to make a reasonable accommodation cannot recover without showing that a reasonable accommodation was possible.” Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 772 (3d Cir. 2004).

The employer’s obligation to engage in an interactive process does not arise until the employer has been informed that the employee is requesting an accommodation. See Peter v. Lincoln Technical Institute, 255 F. Supp. 2d 417, 437 (E.D. Pa. 2002):
The employee bears the responsibility of initiating the interactive process by providing notice of her disability and requesting accommodation for it. The employee's request need not be written, nor need it include the magic words “reasonable accommodation,” but the notice must nonetheless make clear that the employee wants assistance for his or her disability. Once the employer knows of the disability and the desire for the accommodation, it has the burden of requesting any additional information that it needs, and to engage in the interactive process of designing a reasonable accommodation -- the employer may not in the face of a request for accommodation, simply sit back passively, offer nothing, and then, in post-termination litigation, try to knock down every specific accommodation as too burdensome. (citations omitted). See also Conneen v. MBNA America Bank, N.A., 334 F.3d 318, 332 (3d Cir. 2003) (“MBNA cannot be held liable for failing to read Conneen’s tea leaves. Conneen had an obligation to truthfully communicate any need for an accommodation, or to have her doctor do so on her behalf if she was too embarrassed to respond to MBNA’s many inquiries into any reason she may have had for continuing to be late.”).

It is not necessary that the employee himself or herself notify the employer of a need for accommodation; the question is whether the employer has received fair notice of that need. Taylor v. Phoenixville School Dist., 184 F.3d 296, 312 (3d Cir. 1999) (notice was sufficient where it was supplied by a member of the employee’s family; the fundamental requirement is that “the employer must know of both the disability and the employee's desire for accommodations for that disability.”).

Nor is the plaintiff required to request a particular accommodation; it is enough that the employer is made aware of the basic need for accommodation. Armstrong v. Burdette Tomlin Memorial Hosp., 438 F.3d 240, 248 (3d Cir. 2006) (error to instruct the jury that the plaintiff had the burden of requesting a specific reasonable accommodation “when, in fact, he only had to show he requested an accommodation”).

Reasonable Accommodation Requirement Inapplicable to “Regarded as” Disability

In contexts other than reasonable-accommodation claims, the ADA’s definition of “disability” includes “being regarded as having” a physical or mental impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(1)(C). Prior to 2009, this “regarded as” part of the definition of disability also applied to reasonable-accommodation claims. See Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751, 776 (3d Cir. 2004). But in the ADA Amendments Act of 2008, Congress provided that “regarded as” disability cannot provide a basis for a reasonable-accommodation claim. See 42 U.S.C. § 12201(h); see also Robinson v. First State Cmty. Action Agency, 920 F.3d 182, 186 (3d Cir. 2019). Accordingly, Instruction 9.2.1, which defines “disability,” has been revised to reflect that the “regarded as” option is unavailable for reasonable-accommodation claims.

Direct Threat

The ADA provides a defense if the employment or accommodation of an otherwise qualified, disabled individual would pose a “direct threat” to the individual or to others. The “direct threat” affirmative defense is applicable both to disparate treatment claims and reasonable accommodation claims. See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002); Buskirk v. Apollo Metals, 307 F.3d 160, 168 (3d Cir. 2002). See 9.3.1 for an instruction on the “direct threat” affirmative defense.

Statutory Definitions

The ADA employs complicated and sometimes counterintuitive statutory definitions for many of the important terms that govern a disparate treatment action. Instructions for these statutory definitions are set forth at 9.2.1-9.2.2. They are not included in the body of the reasonable accommodations instruction because not all of them will ordinarily be in dispute in a particular case, and including all of them would unduly complicate the basic instruction.

Potential overlap between ADA reasonable-accommodation claims and FMLA claims

Regulations and caselaw recognize the possibility that the same facts might (in certain circumstances) ground both a reasonable-accommodation claim under the Americans With Disabilities Act and a claim under Family and Medical Leave Act. “If an employee is a qualified individual with a disability within the meaning of the ADA, the employer must make reasonable accommodations, etc., barring undue hardship, in accordance with the ADA. At the same time, the employer must afford an employee his or her FMLA rights. ADA’s ‘disability’ and FMLA’s ‘serious health condition’ are different concepts, and must be analyzed separately.” 29 C.F.R. § 825.702(b). “[A] request for FMLA leave may qualify, under certain circumstances, as a request for a reasonable accommodation under the ADA.” Capps v. Mondelez Glob., LLC, 847 F.3d 144, 156-57 (3d Cir. 2017) (upholding grant of summary judgment to defendant because, “even assuming, arguendo, that Capps’ requests for intermittent FMLA leave constituted requests for a reasonable accommodation under the ADA as well, Mondelez continued to approve Capps’ requested leave, and indeed, Capps took the requested leave,” with the result that “Capps received the accommodation he asked for”).

(Last Updated July 2019)


11 See Comment for discussion of the fact that this claim is unavailable where disability is established solely on the basis of “regarded as” disability.
12 Where warranted, more detail can be given, e.g.: “The nature and net cost of the accommodation…, taking into consideration the availability of tax credits and deductions, and/or outside funding.” 29 C.F.R. § 1630.2(p)(2)(i) (2019).
13 Congress has provided that the same standards govern employment-discrimination claims under the ADA and the Rehabilitation Act. See 29 U.S.C. § 791(f) (Rehabilitation Act claims relating to federal-sector employment); see also id. § 793(d) (Rehabilitation Act claims relating to employment by federal contractors); id. § 794(d) (Rehabilitation Act claims against employers that receive federal financial assistance). Accordingly, employment-discrimination precedents concerning reasonable accommodation (or reasonable modification) under the Rehabilitation Act are equally relevant to ADA employment-discrimination reasonable-accommodation claims. More broadly, precedents concerning reasonable modifications under Titles II and III of the ADA, and non-employment-related Rehabilitation Act precedents concerning reasonable accommodation, may also be informative. See Berardelli v. Allied Servs. Inst. of Rehab. Med., 900 F.3d 104, 118 (3d Cir. 2018) (holding that Department of Justice regulations (concerning service animals) under Titles II and III of the ADA governed a Rehabilitation Act claim against a private children’s school, and stating that, based on the “intertwined histories” of the Rehabilitation Act and the ADA, “[t]he reasonableness of an accommodation or modification is the same under the RA and the ADA”).

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