35 Pages Posted: 5 Sep 2015
Date Written: January 5, 2015
This article addresses a phenomenon that often arises in reasonable accommodation cases under the Americans with Disabilities Act, a phenomenon I call “withdrawn accommodations.” This occurs when an employer has agreed to provide an accommodation to an employee with a disability and then later withdraws the accommodation. Employers might withdraw accommodations for a couple of reasons. First, an employer might withdraw an accommodation because it finds out that the employee’s need for the accommodation is permanent, rather than temporary, as the employer might have first believed. Second, a new supervisor might arrive on the scene, and decide to withdraw a previously granted accommodation. The legal issue in these cases is what weight (if any) courts should give the previously provided accommodation in determining whether the accommodation is “reasonable.” In other words, is the employer precluded from asserting that the accommodation is unreasonable or causes an undue hardship if it has already been providing the accommodation successfully for some period of time? This Article explores a body of cases addressing the withdrawn accommodation issue and tackles the policy issue of whether there should be an inference or presumption in favor of the reasonableness of an accommodation when employers have previously provided the accommodation.
Keywords: disability, accommodation, ADA, employment, discrimination
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