Friday, August 27, 2010
As anyone who has read more than one or two ADA cases knows, the vast majority of litigation has focused on whether a person is a qualified individual with a disability--and more specifically, whether a major life activity is substantially impaired under the meaning of the statute. That is one reason for the ADA Amendments Act, loosening the definitions the courts had imposed on the ADA. In fact, there are still an awful lot of cases involving conduct engaged in before the amendments went into effect, so we're still in that world to some extent.
Which is why it's refreshing to see a case that focuses on a different portion of the statute--the duty of reasonable accommodation. In EEOC v. UPS, the Ninth Circuit had to consider when an accommodation that an employer actually provided would be considered reasonable enough that it need not do more. And because reasonableness is usually a question of whether the employer has to provide something that is costly or difficult for the employer, this case is better framed as when a purported accommodation is actually an accommodation.
The employee in this case could not hear and had been born that way. His first and primary language was American Sign Language, which is not co-extensive with English. There are signs we have no English words for and words there are no signs for. As a result of this being his second language and a fundamentally different manner of communicating, the employee had limited capacity to read and write in English; he read and wrote at about a 4th grade level. There was no question that he could perform most of the duties of his job. The dispute arose about things connected to work outside of those primary duties: mandatory weekly and monthly meetings; training; and understanding policies and potential disciplinary actions.
The employee had requested an ASL interpreter to translate all of these thing, but UPS provided one only some of the time. Other times it relied on written communications that were either incomplete, not contemporaneous with the speaking, or written at a level above the employee's competency. When the employee stated that he didn't understand something in writing, UPS generally told him to look it up in a dictionary. When that didn't help, UPS provided nothing further. The Ninth Circuit found that at the very least there were contested facts about whether the attempted accommodations actually accommodated the employee and whether UPS even tried to explore accommodations in good faith. So the court reversed the district court's grant of summary judgment for UPS.
In the court's words,
In summary, an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers, but an employer cannot satisfy its obligations under the ADA by providing an ineffective modification. Where, as here, there is a disputed issue of fact regarding whether the modifications the employer selected were effective, and where the trier of fact could reasonably conclude that the employer was aware or should have been aware that those modifications were not effective, summary judgment is not appropriate.
Interestingly, UPS does not appear to have provided any reason for not employing an ASL interpreter--not even the obvious, that it was too expensive. It's possible that the company will raise that at trial on remand, but it would likely be better off settling this one.