Court Decision Highlights Importance of ADA ‘Interactive Process’

By Zachary Anstett

In an order filed July 18, U.S. District Court Judge Louise Flanagan of the Eastern District of North Carolina refused to dismiss a lawsuit brought under the Americans with Disabilities Act for failure to make reasonable accommodations. Judge Flanagan’s decision in Murphy v. County of New Hanover illustrates how important it is for employers to engage in the “interactive process” under the ADA and to continue with that process even if the first attempt at accommodation is unsuccessful.


According to his lawsuit, Mr. Murphy was hired as a social worker in the foster care unit at the New Hanover County Department of Social Services in 2016, with the primary function of reunifying families. Mr. Murphy had Attention Deficit and Hyperactivity Disorder, which made it difficult for him to focus, concentrate, communicate, and work with others. Mr. Murphy alleged that he had no problem performing his “reunification” duties but that his ADHD made it difficult for him to complete his required paperwork unless he was in a setting without distractions.

Mr. Murphy was assigned to an office that placed him near other co-workers, and he alleged that this made it difficult for him to focus. As a result, he claimed, he missed deadlines and was counseled about the timeliness of his work. Mr. Murphy then emailed the chief Human Resources Officer of the NHDSS and informed him of his ADHD and need for accommodation.

In response, the NHDSS moved him to a different office shared with another co-worker and gave him a noise-cancelling headset. According to the lawsuit, Mr. Murphy was only about a foot and a half away from his co-worker in the new space, and his headset did not fit properly. He alleged that he got no response from his supervisors when he told them that the accommodations were not effective.

Mr. Murphy was terminated about five months after his hire because of the performance deficiencies addressed in the feedback sessions. He sued, alleging among other things disability discrimination under the Americans with Disabilities Act. The NHDSS moved to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim.

Plaintiff Stated a Claim Based On Failure To Accommodate

For a viable ADA claim based on failure to accommodate, the employee must have a disability, the employer must be aware of the disability, the employee must be able to perform the essential functions of the job with a reasonable accommodation, and the employer must have refused to make the necessary reasonable accommodation.

In determining that Mr. Murphy’s ADHD was a disability, Judge Flanagan noted that “disability” should be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA, and that the standard is not demanding. She found that Mr. Murphy had sufficiently alleged that his ADHD substantially limited major life activities, including concentrating, thinking, interacting with others, working, and sleeping.

In his complaint, Mr. Murphy identified four possible accommodations that could have helped him avoid distractions in the office: “1) working from home, 2) transferring to an after-hours position, 3) working in a private office, or 4) wearing a headset that fit properly to cancel outside noise.” Judge Flanagan found that only one of the accommodations proposed by Mr. Murphy was unreasonable: transfer to an after-hours position because Mr. Murphy was not qualified for that position.

Failure To Engage In Interactive Process

Because the office change and headset were allegedly ineffective, and because Mr. Murphy had allegedly put the NHDSS on notice of this, Judge Flanagan determined that the NHDSS had an ongoing duty to engage in the ADA interactive process with Mr. Murphy:

An employee’s accommodation request, even an unreasonable one, typically triggers an employer’s duty to engage in an ‘interactive process’ to arrive at a suitable accommodation collaboratively with the employee . . .. A party that fails to communicate, by way of initiation or response, may [ ] be acting in bad faith. In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.

(Quotations and citations omitted.)

According to Mr. Murphy’s complaint, the NHDSS made one attempt at reasonable accommodation but then stopped trying even though Mr. Murphy said that the accommodations were not effective. According to Judge Flanagan, those allegations “support an inference that defendant refused to provide a reasonable accommodation where one was possible.. . . Plaintiff alleges that defendant ceased to communicate with him about ADA accommodations, and that three different reasonable accommodations could have been provided. Accordingly, plaintiff states a claim for failure to accommodate.”

Judge Flanagan’s decision provides at least two important lessons for employers: First, the critical  importance of engaging in the ADA “interactive process,” and, second, that the dialogue should continue even when first attempts fail.