Engaging in the interactive process is an important — and sometimes overlooked — part of an employer’s response to a request for a reasonable accommodation under state and federal law.

I talked about this way back in 2008 (!) when the state Supreme Court released it’s landmark Curry v. Allen S. Goodman decision expanding the state anti-discrimination protections for disability claims and concluding that state law has an interactive process requirement inherent in the language of the statute.

Back then the Court noted that the interactive process required by law is ongoing, meaning that the provision of a ‘‘temporary accommodation does not circumvent . . . the requirement to make a good faith effort to engage in [the] interactive process, if the employee so requests, to determine whether the employer might make some other reasonable accommodation on a more permanent basis.’’

What happens to the process when an employee files a discrimination complaint and is still employed?

The answer to that question has been clear — the ongoing interactive process continues during the course of the plaintiff’s employment, even after the plaintiff has filed a complaint alleging disability discrimination.

But things often get messy. In fact, I talked about an Appellate Court’s decision on the subject back in June 2020 which concluded that certain statements by an employer during a mediation were inadmissible.  

And that’s where a new CT Supreme Court decision kicks in.

In Kovachich v. Department of Mental Health and Addiction Services, the court reversed the Appellate Court in sorting out the “potential overlap between pending or impending litigation and the duty to engage in a good faith interactive process to find a reasonable accommodation for the plaintiff’s disability.”

The court was quick to note the obvious: that  “it may be very difficult in some circumstances to distinguish between settlement negotiations and the interactive process.”

But the court said that when the good faith interactive process bleeds into the settlement process, “the question presented in the instant case arises: are reasonable accommodations proffered during the course of settlement communications admissible under § 4-8 (b) (1) of the Connecticut Code of Evidence for the purpose of demonstrating a party’s compliance or noncompliance with the applicable legal requirements regarding the initiation of or participation in the good faith interactive process?”

The answer is still not an easy one — as the mixed decisions from the lower courts show.  Ultimately the court concluded that “a party’s offer to settle or compromise a claim may, under the appropriate circumstances, be admissible under subdivision (1) of § 4-8 (b) of the Connecticut Code of Evidence for the purpose of establishing a party’s initiation of or participation in the good faith interactive process required by CFEPA, or the failure to communicate with the opposing party by way of initiation or response.”

The facts of the case are convoluted and the procedural history even more complex to summarize in a brief blog post.   Suffice to say that the decision should raise significant concerns to employers about statements made during mediations — particularly those held at the CHRO.

If an employer has to engage in the interactive process, the employers should do so and make it clear which discussions are part of such a process and which ones are exclusive to the mediation role.

I anticipate my colleagues will talk more about the decision in our upcoming webinar series. Sign up today here.