13.345.70 Whether failure to engage in interactive process results in automatic denial of summary judgment

In most circuits, a failure to engage in the interactive process will not result in a denial of summary judgment unless the plaintiff can show that a reasonable accommodation was available. In Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir. 2001), the court explained its position on this issue:

   Barnett can be read as holding that an employer who has not engaged in the interactive process is not entitled to summary judgment no matter what the evidence on summary judgment shows concerning the actual availability of a reasonable accommodation. It is odd, however, to delay until trial an issue that is fact dependent, if proof of the relevant facts -- here, the facts pertinent to proving that a relevant accommodation was available -- will be necessary at trial. We therefore understand Barnett as holding, instead, that the task of proving the negative -- that no reasonable accommodation was available -- rests with an offending employer throughout the litigation, and that, given the difficulty of proving such a negative, it is not likely that an employer will be able to establish on summary judgment the absence of a disputed fact as to this question.

Morton, 272 F.3d at 1256 n. 7.