When an employee requests an accommodation for a disability under ADA, it is important to act on the request in a timely way. Tech giant IBM has learned the hard way that if you delay, even if not maliciously, you risk being seen as failing to engage in a good-faith interactive process—the step that courts see as critical to complying with the law.

Piyush Gupta was a vice president of product management at IBM. The position required him to travel frequently on company business. He developed back problems in part because of the frequency and great length his business trips. Based on his doctor’s recommendations, Gupta requested that IBM accommodate his disability by allowing him to fly business class on his trips and by providing him with a sit/stand desk. IBM agreed readily to his first request, giving him permission to fly business class on flights longer than six hours. But Gupta’s request for a sit/stand desk got caught up in the company’s bureaucratic machinery, resulting in a delay that ended up lasting 3½ months. In the meantime, an unrelated process was set in motion that complicated the issue for both IBM and Gupta, contributing to his decision to sue the company for disability discrimination and failure to accommodate under California’s Fair Employment Housing Act.

In early 2013, when Gupta had been experiencing his back problems but before his physician prescribed business-class flying and the sit/stand desk, Gupta sat with his supervisor and a senior vice president to talk about his unhappiness in his current position and the possibility of either a new role with IBM or a mutually acceptable plan for exiting the company.

Later, after he made his requests for accommodations, his supervisor sat with him to get his input about a coming reduction in force (RIF). Upon being asked for his recommendations, Gupta told his supervisor that if many people were to be laid off, she should probably include him on the layoff list.

This happened while Gupta’s request for a sit/stand desk was moving through the company’s bureaucratic machinery. It had been approved by a company ergonomics expert and a company nurse, but not yet by his supervisor.

Sometime after the conversation about the upcoming RIF, Gupta’s supervisor told him that she had decided to take him up on his offer to be laid off. Then, but only after another few weeks, she approved his request for a sit/stand desk.

Upon being laid off, Gupta refused his severance package and filed his suit. The case went before U.S. District Court Judge Edward J. Davila. IBM moved for summary judgment. Judge Davila granted summary judgment on Gupta’s disability discrimination claim, rejecting Gupta’s argument that he really didn’t mean it when he suggested that he should be part of the RIF. The judge decided it was reasonable for the supervisor to believe him when he made that suggestion, and the timing of IBM’s decision, which preceded its decision to approve his accommodation request, may have been unfortunate but was not relevant.

However, the judge questioned IBM’s argument that the delay in approving Gupta’s request for the sit/stand desk was due to routine processing of an accommodation request by a large company. His skepticism on that point, and the fact that IBM could not demonstrate bad faith on Gupta’s part, led him to conclude that the company may have been unwilling to engage in a good-faith interactive process. Whether that was so, or not, would have to be settled by a jury. Said the judge,

(T)he court cannot determine whether the 3½ month delay in approving the ergonomic furniture request is “reasonable” . . . The record does not provide information on how long IBM typically takes to approve such request, nor was IBM able to offer that information at oral arguments. Given that this delay could have impeded Plaintiff’s ability to obtain a reasonable accommodation, there is a triable issue of material fact as to whether IBM fulfilled its duty to provide a reasonable accommodation.

The takeaway for HR departments is clear: You need to look at the good-faith interactive process as the most critical step in demonstrating your organization’s “reasonableness” in searching for and possibly arriving at a reasonable accommodation. Timeliness is an indicator of good faith. Do not allow a request for a reasonable accommodation under ADA to go unaddressed for any extended period of time.

Source: Mannet Phelps &Phillips, 12/11/15; Piyush Gupta v. International Business Machines Corporation (IBM)