In Washington, there is a requirement under the Washington Law Against Discrimination (WLAD) that employers and employees engage in an interactive process to achieve a reasonable accommodation for any employee’s disability.  The Interactive process is intended to find a reasonable accommodation which does not place an undue hardship on the employer.  The WLAD specifically provides that the employee is not required to specifically request an accommodation or ask the employer to engage in the interactive process.  Rather, it is the employer that has a duty to engage in the interactive process when the employee puts the employer on notice of a disability and its accompanying limitations.  The “interactive process…envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between employee’s capabilities and available positions.”  Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P.2d 1265 (1995).  The purpose of the interactive process is to determine the nature and extent of the limitations and to assist the worker in continuing to work at their current position or attempt to locate a position compatible with those limitations.  Davis v. Microsoft Corp., 149 Wn.2d 521, 536–37, 70 P.3d 126 (2003).  Failure by an employer to engage in the interactive process is a separate and independent basis for liability under discrimination law.  Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1139 (9th Cir. 2001)

In addition to engaging in the interactive process, the employer must affirmatively take steps to enact the accommodation.  Holland v. Boeing Co., 90 Wn.2d 384, 389, 583 P.2d 621 (1978); Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 777-78, 249 P.3d 1044 (Div. 1 2011); RCW 49.60.180(2).  “[T]he duty to accommodate is a continuing duty that is not exhausted by one effort.”  Humphrey, 239 F.3d at 1138 (9th Cir. 2001) (internal quotation marks omitted).  And “the employer’s obligation to engage in the interactive process … continues … where the employer is aware that the initial accommodation is failing and further accommodation is needed.”  Id.  Likewise, “[a]n ineffective ‘modification’ or ‘adjustment’ … [is one that] will not accommodate a disabled individual’s limitations.”  US Airways, Inc. v. Barnett, 535 U.S. 391, 400, 122 S. Ct. 1516, 152 L.Ed.2d 589 (2002).

By Joseph Gehrke

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