The re habilitation act in reynolds v dole 276 a

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Chapter 3 / Exercise 3.75
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the Re- habilitation Act. In Reynolds v. Dole, 276 a federal trial judge wrote: 269. 708 P.2d 393 (Wash. 1985). 270. Id. at 394. 271. Id. at 395. 272. Id. at 400. 273. Id. 274. See, e.g., Harrison v. Marsh, 691 F. Supp. 1223, 1232 (W.D. Mo. 1988) (determining that employer must reassign typist with limited arm motion to position involving less typing); see also Henry v. Menorah Medical Ctr., 1991 U.S. Dist. LEXIS 3686, at *6-7 (W.D. Mo. Mar. 18, 1991) (denying summary judgment in favor of hospital that refused to reassign nurse with arm injury to secretarial position). 275. See, e.g., James v. Frank, 772 F. Supp. 984, 992 (S.D. Ohio 1991) (holding that the prob- lem was the employer's failure to provide a chair for an amputee). 276. 57 Fair Empl. Prac. Cas. (BNA) 1848 (N.D. Ca. Aug. 1, 1990), aff'd, 985 F.2d 470 (9th Cir. 1993). 1993]
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Chapter 3 / Exercise 3.75
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242 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW [Vol. 14:201 [A]s part of its duty of reasonable accommodation, a[n] ... employer must do the following: ... make a reasonable inquiry regarding the em- ployee's work history and medical history and independently assess whether the employee's [disability] is negatively impacting on his or her job performance and what possible measures the employer can undertake to improve the employee's job performance, short of any action that would impose an undue hardship on the operation of the employer's program. 2 7 7 On the other hand, the employer is not obligated to spend large amounts of time or money if it becomes clear that the employee simply cannot do the job, either because of the employee's disability or because of personal factors. 27 1 If the employee refuses to try to do the job, demands accom- modations that are unduly burdensome or unnecessary, or is absent ex- cessively, the employer is entitled to discharge the employee. 2 79 An issue that neither the law, regulations, nor legislative history ad- dress is at what level the accommodation must enable the worker to per- form. Does an accommodation that enables a worker to achieve a minimally acceptable level of performance satisfy the law? Would an accommodated worker who alleges that a mediocre performance rating was due to an inadequate accommodation rather than to personal factors have a colorable ADA claim? If so, does that make the employer's duty one of guaranteeing either an accommodation that will result in above- average performance (assuming the worker is capable of such perform- ance), or at least a performance rating that is above average? One commentator asserts that "the governing principle in determin- ing an appropriate reasonable accommodation is whether it provides the person with the disability an opportunity to attain the same level of achievement as a person with comparable ability and without a disabil- ity." ' 2 0 Given the fact that the definition of "qualified" includes the con- cept of accommodation, 2 s ' it appears that an accommodation must enable the worker to perform her job at an acceptable level. If persons with disabilities are to receive effective accommodations, as the regula- tions require, the issue of the level of accommodation and its effect on the 277. Id.

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