To Trigger or Not to Trigger: The Catch-22 of the Americans with Disabilities Act’s Interactive Process

Author(s)

Kelly Kagan

Details

Faculty editor: Roy Brooks
Publication: Law Review
Volume: 57
Issue: 2
Start Page: 501
Month: June
Year: 2020
Type: Comment
Instititional Repository (IR) location of full article: https://digital.sandiego.edu/cgi/cview2.cgi/sdlr/vol57/iss2

Abstract

This Comment proposes solutions to help ensure persons with mental disabilities are supported in the workplace and will proceed in the following manner. Part II examines the historical background of the ADA and the employer’s role and duties under the ADA. This Part also briefly describes the elements of a “failure to accommodate” claim and a “regarded as” claim. Part III explores the current trend of ADA mental disability claims and explains how the current ADA limits employers to “reactive”—rather than proactive—solutions. This reactive approach only confuses employers and inhibits the assimilation of persons with mental disabilities into the workplace. Finally, Part IV recommends how Congress can amend the ADA to require employees to disclose their disabilities to their employers before an employer can be held liable for failing to accommodate an individual’s disability. Requiring an employee to disclose a mental disability to an employer gives the employer a clear signal to engage in an interactive process with the employee to find an effective accommodation. Additionally, Congress should prohibit plaintiffs from pleading in the alternative with respect to failure to accommodate and regarded as discrimination claims. These relatively small changes to the ADA will make it easier for employers and employees to work together, which will help to integrate qualified persons with mental disabilities into the workplace.