An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

Schools with employees represented by a union should bear in mind that the legislative intent under the ADA is that collective bargaining agreements are not controlling. 1526 The United States Supreme Court ruled that while an accommodation is usually not reasonable if it violates a seniority provision in a collective bargaining agreement, an employee might be able to show “special circumstances” that the school should set aside the seniority system in a particular case. 1527 Hence, a school should first consider reasonable accommodation rather than merely relying on its policies or labor agreements as a defense to discrimination claims under the ADA. x. Training In one case, a court found that an employee/plaintiff who was handicapped with both mental retardation and emotional disability was “constructively discharged” (effectively forced to resign due to intolerable work conditions) from employment. This resulted from taunting by co- workers and inappropriate discipline from a supervisor due to her handicap. The court held that the employer failed to accommodate the employee’s handicap adequately even though the employer tried to accommodate the plaintiff by requiring other employees to attend sensitivity training sessions. The court found such sessions to be untimely and that the employer took a “soft approach” to disciplining employees. 1528 xi. Adjusting A Supervisory Method 1529 In some circumstances, adjusting a supervisory method or approach may be a reasonable accommodation. For example, supervisors could modify the way they communicate assignments, instructions or training to a medium that is more effective for a particular individual with a disability (e.g., in writing, in conversations, or by electronic mail). Adjusting the level of supervision or structure may sometimes enable an otherwise qualified individual with a disability to perform essential job functions. For example:  An otherwise qualified individual with a disability who experiences limitations in concentration may request more detailed day-to-day guidance, feedback, or structure in order to perform her job.

 An employee requests more daily guidance and feedback as a reasonable accommodation for limitations associated with a psychiatric disability. In response to his request, the school consults with the employee, his health care professional, and his supervisor about how his limitations are manifested in the office (the employee is unable to stay focused on the steps necessary to complete large projects) and how to make effective and practical changes to provide the structure he needs. As a result of these consultations, the supervisor and employee work out a long-term plan to initiate weekly meetings to review the status of large projects and to identify what steps need to be taken next.

xii. Providing A Job Coach 1530 According to the EEOC, a school also may be required to provide a temporary job coach to assist in the training of a qualified individual with a disability as a reasonable accommodation, barring

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 346