Once you accommodate disabled, proving ‘hardship’ gets tougher

When Larry Skerski began working as a cable technician, about half his job involved climbing ladders, poles and towers. But a decade into his job, he developed a panic disorder when working at heights. On his doctor's recommendation, the company limited Skerski to working underground.

Two years later, Time Warner took over the company. Skerski's job wasn't altered, but later that year he got a new supervisor who gave him a low performance review because of his inability to climb. Skerski asked to use a bucket truck for working at heights but was refused. Instead, he was given the chance to regain his climbing skills with a 90-day training program. Skerski couldn't do it.

Time Warner decided to fire Skerski but first offered him a warehouse position that paid nearly $7 an hour less. Skerski accepted the job "under duress" but then sued the company for violating the Americans with Disabilities Act (ADA).

Time Warner argued that climbing is an essential part of the job, and it would be inconvenient to make the adjustments to retain Skerski as an installer. A lower court sided with the company.

But the 3rd U.S. Circuit Court of Appeals reinstated the claim. It said that Skerski was allowed to work for more than three years without climbing, a powerful argument that the no-climbing accommodation was possible and that climbing may not be an essential function of the job. In fact, although Skerski's job description included climbing, it wasn't under the heading of "essential functions." (Skerski v. Time Warner Cable Co., No. 00-3199, 3rd Cir., 2001)

Advice: This case shows how courts will look at past accommodation efforts to see if a proposed accommodation is reasonable. It won't cut it to argue, as Time Warner did, that a certain accommodation would be "inconvenient." The ADA was enacted precisely to force companies to look deeply and more creatively at accommodations.

Companies are allowed to reject proposed accommodations if they cause an "undue hardship" on the company. So if you're going to strip an employee of an existing accommodation, you'll need to show how it suddenly became harder.