rvp-yelling-at-refIn its May 2, 2017 decision in Koester v. Young Men’s Christian Assn. of Greater St. Louis, 855 F.3d 908, 909 (8th Cir. 2017) the Eighth Circuit casually suggested that the “interactive process” does not apply to accommodation requests under Title III of the ADA. It sidestepped the issue in the end, but wrote that it approached a claim based on a failure of the process with a “a healthy dose of skepticism that these concepts are applicable in this Title III case.” As authority it dropped a footnote to its earlier decision, Mershon v. St. Louis U., 442 F.3d 1069, 1078 (8th Cir. 2006). In Mershon the Court expressed doubt that the interactive process applied to a claim in an academic setting, referring in turn to the decision in Stern v. U. of Osteopathic Med. and Health Scis., 220 F.3d 906, 909 (8th Cir. 2000).  The Stern case did not include any expression of doubt; only a recognition that the question was unresolved: “Even if such an interactive process is required in an academic setting. . . .” This time the authority cited was a lower court decision, Guckenberger v. Boston U., 974 F. Supp. 106, 142 (D. Mass. 1997). In Guckenberger, oddly enough, the Court assumed that an interactive process was required by Title III, but found that the system in place at the defendant university was sufficiently interactive.
Like the old game of telephone, in which a message becomes increasingly garbled as it is passed from one person to another   Guckenberger’s assumption that an interactive process is required by Title III was somehow converted to the opposite in Koester. None of this changed the outcome of any case, but it might leave businesses and their lawyers wondering just what Title III does require when an accommodation is requested.
In many cases there is only one answer and no chance to discuss it. If a person with a guide dog wants to bring it in the restaurant the only accommodation is to allow the dog. In many other cases, however, there is time for at least a discussion about a solution that works for everyone. Does the decision in Koester mean this isn’t necessary?  The answer is simple – it doesn’t matter. In the early days of the ADA a District Judge in Maine explained that an interactive process is “a means of arriving at a reasonable accommodation.” Dudley v. Hannaford Bros. Co., 190 F. Supp. 2d 69, 75 (D. Me. 2002), aff’d, 333 F.3d 299 (1st Cir. 2003). For businesses, schools and other Title III entities the point of the interactive process is not to engage in some legal tango as each side seeks an advantage, but rather to avoid a lawsuit by finding a solution to a mutual problem. Your business has something to sell. A disabled individual wants to buy it but cannot because of a disability. Everyone benefits if there is agreement on a solution. While the Eighth Circuit may be skeptical of the applicability of the interactive process to Title III cases, businesses and consumers should have no doubt that it is a good idea.