*** I'm not an attorney & this isn't legal advice. I'm just another employee who went through it. All opinions are my own. Please do your own research. ***

One of the passive-aggressive ways employers try to avoid reasonably accommodating us is by unreasonably delaying our accommodations until we either lose our temper, which they’ll spin as a conduct problem, or until we give up and go away. If react either way, they win.

The sad truth is that when THEY decide to drag their feet, there isn’t a lot we can do to make them. I won my failure to accommodate claim and I got a very nice award… as compensation for the fact that my boss NEVER had to reasonably accommodate me.

We can try being extra accommodating ourselves, in the hope they’ll meet us halfway… but that didn’t work for me. The best option I could find was to DOCUMENT the delays, I’d at least have EVIDENCE of their delay tactics to use at my hearing.

Employers seem to believe that it’s fine to DELAY our requests for reasonable accommodation as long as they possibly can. This week I wanted to share a couple of cases where delays bit employers in the butt.

McCray v. Wilkie (7th Circuit, 7/16/22) found a delay in providing a reasonable accommodation can be a violation of the ADA or Rehabilitation Act all by itself. And that decision also lays out how judges should go about deciding when that’s happened.
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Also see:
Jayv.IntermetWagner,233F.3d1014,1017(7thCir.2000)
8No.19‐31452010)(RehabilitationAct); Selenkev.Med.ImagingofColo.,248F.3d1249,1262(10thCir.2001)(ADA)

The McCray decision says that whether or not a delay is unreasonable depends on the “totality of the circumstances,” based on AT LEAST five factors:
1) employer’s good faith in attempting to accommodate the disability;
2) the length of the delay;
3) the reason for delay;
4) the nature, complexity, and burden of the accommodation requested; and
5) whether the employer offered alternative accommodations.

After considering all factors, if the judge determines that the “totality of circumstances” resulted in unreasonable delay, that’s failure to accommodate, all on its own… even if your employer eventually ends up providing the accommodations you request.

What the VA did was bad, but McCray survived. We don’t always. Take DiFranco v. City of Chicago.
DiFranco was a cop working with the narcotics unit of the Chicago Police Department. He had cystic fibrosis, a permanent and progressive lung disease, and diabetes related to that. And his story is infuriating.
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The whole point of a failure to accommodate claim is that the law says we employees have the right to ask to be treated differently, because of our covered disability, and when we ask, our employer is obligated to take prompt action on our requests.
Torzewski v. COSCO Shipping Lines N. Am. Inc., 414 F. Supp. 3d 1143, 1150 (N.D. Ill. 2019)

More about DiFranco:
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It’s encouraging that courts recognize delaying reasonable accommodation can have the same effect as not accommodating us at all… but until EMPLOYERS get that, and start acting accordingly, our best hope is to hang the fight in long enough to get some compensation for the harm their delays caused.

To do that, we’ll need evidence. We can use the McCray factors as a guideline of what we’re out to prove.

It’s a waste of time trying to make a bad employer act right. We have to deal with the delays… and nail them for it later!

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