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ADA accommodation must be effective, not most effective for each employee

June 10th, 2015  |  Kathy Kapusta

While a reasonable accommodation may take many forms, it must be effective, explained the Second Circuit in observing that, at the same time, employers are not required to provide a perfect accommodation or the very accommodation most strongly preferred by the employee. Accordingly, despite crediting a deaf employee’s assertion that he could not simultaneously watch an American Sign Language interpreter and his employer’s intranet video because it was too “tiring and confusing to switch back and forth between the interpreter and the screen,” the appeals court found this disadvantage did not render his employer’s accommodation of interpretive services ineffective.

The software engineer, who was provided with a number of accommodations during his long-tenure with the company, frequently asked for captioning of particular intranet videos or transcripts of audio files. His employer maintained an intranet site where over 46,000 video files and 35,000 audio files were posted, with thousands of files continuously being uploaded. The content of the library included official management messages, educational and training resources, and employee-generated posts.

Confusing and tiring. In response to his requests, IBM provided transcripts of specific video or audio files rather than on-screen captions, and these were generally made available within five days of his request. He also had access to ASL interpreters who provided real-time translation services, either on-site or remotely, for intranet content as well as for live meetings. Although the employee used interpreters when he attended live meetings, he disliked using them for videos because he found it “confusing and tiring” to look back and forth between the video and the interpreter.

Alleging that his employer discriminated against him because of his disability by refusing to provide the accommodation he demanded—that, at the time they are posted, all intranet videos be captioned and all audio files have transcripts—the employee sued, asserting claims under the ADA and state law. In granting his employer’s motion for summary judgment, the district court found that the company reasonably accommodated the employee by providing ASL interpreters. It also rejected his claim that IBM failed to engage in an interactive process, reasoning that such a claim cannot be maintained if the employer provided reasonable accommodation.

Accommodations. On appeal, the employee argued that while he had access to ASL interpreters, received transcripts upon request, and could view certain videos with captioning, the transcripts were inadequate because they were occasionally subject to delays and the captioning appeared on only a few of the company’s videos. Acknowledging that there might be fact disputes as to the timeliness and adequacy of the transcripts and captioning, the appeals court observed that it was undisputed the ASL interpreters were available to the employee whenever he wished to view a video or access an audio file. Further, the files were translated in real-time and the interpreters were available both on-site and remotely.

Effectiveness of interpreters. While the employee conceded that he regularly used interpreters for work meetings and found their services effective, he argued that interpreters were “not as effective” as captioning. But, explained the court, the law requires an effective accommodation, not the one that is most effective for each employee. As to his contention that it was too confusing and tiring to divide his visual attention between an interpreter and the video screen, while the court conceded the need to split visual focus was a disadvantage that likely tired or annoyed him, in this case, it found that the disadvantage did not render his employer’s accommodations ineffective.

Because a person who is deaf necessarily receives auditory information from the other senses, such as sight, it can be expected that many accommodations of deafness will tax visual attention to some degree, said the court, in finding that an “accommodation for deafness therefore cannot be rendered ineffective by the need to divide visual attention, without more.”

As support for its holding, the court pointed out that the term “reasonable accommodation” is defined by regulation (29 C.F.R. Sec. 1630.2(o)(2)(ii)) to include “the provision of qualified readers or interpreters.” While per se rules are unreliable in the disability context, and thus ASL interpretive services may not always constitute a reasonable accommodation, according to regulation, interpreters are a common form of reasonable accommodation, the court stated.

In addition, the employee conceded that ASL interpreters were effective for live business meetings. Finding no evidence that live meetings were somehow less visually demanding or that the employee had to shift his eyes a shorter distance, the court pointed out that at meetings, just as with videos, the employee needed to watch the interpreter while simultaneously looking elsewhere to observe the facial expressions and gestures of the speaker, identify who was speaking, and follow any visual aids.

Pointing out that the employee was fluent in ASL, and that there was no evidence that the interpreters were unqualified or that the use of interpreters was somehow inconsistent with his position as a software engineer, the court concluded that his sole objection—he had to look back and forth between an interpreter and his screen—did not, without more, make that accommodation unreasonable. Accordingly, the court affirmed the grant of summary judgment as to this claim.

Employer takeaways. The reasonable accommodation requirement is a means by which barriers to the equal employment opportunity of an individual with a disability are removed or alleviated. These barriers may, for example, be physical or structural obstacles that inhibit access of an individual with a disability to job sites, facilities or equipment; rigid work schedules that permit no flexibility as to when work is performed or when breaks may be taken; or inflexible job procedures that unduly limit the modes of communication that are used on the job, or the way in which particular tasks are accomplished.

Once a qualified individual with a disability has requested a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation through an informal, interactive, problem-solving technique involving both the employer and the qualified individual with a disability.

When a qualified individual with a disability has requested a reasonable accommodation to assist in the performance of a job, the employer should:

1. Analyze the particular job involved and determine its purpose and essential functions; 

2. Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual’s disability and how those limitations could be overcome with a reasonable accommodation; 

3. In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and 

4. Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both parties.

In many instances, the appropriate reasonable accommodation may be so obvious to either or both the employer and the qualified individual with a disability that it may not be necessary to proceed in this step-by-step fashion.