By Anthony Kaylin, courtesy of SBAM Approved Partner ASE
In order to identify and implement a reasonable accommodation, the employer and employee need to engage in an interactive discussion. Regardless, the final decision rests with the employer. The fact that an employee may in the future not like the accommodation made does not necessarily make the accommodation unreasonable or require the employer to reopen discussions as the case below shows.
Noll, who is deaf, has worked as a software engineer at IBM since 1984, enjoying consistently positive performance reviews. In performing his work, Noll uses several accommodations provided by IBM, including on-site and remote ASL interpreters, as well as measures described as “communication access real-time translation (‘CART’), internet based real-time transcription, and video relay services.”
Like most employers, IBM maintains a corporate intranet for its approximately 440,000 employees worldwide. Content ranges from official management messages to educational and training resources to such personal material as employees’ vacation photos. The intranet hosts a huge volume of video and audio files in a number of locations, and thousands of files are continuously being uploaded. IBM’s Media Library alone stores over 46,000 video files (and over 35,000 audio files). However only about 100 videos are captioned.
From 2003 to 2008, Noll frequently asked the Persons with Disabilities (PwD) program manager at IBM for captioning of particular intranet videos or transcripts of audio files. On these occasions, IBM typically provided Noll with transcripts (of both video and audio files) rather than on-screen captioning. However, the process of obtaining transcripts was imperfect: although transcripts were generally made available within five days of Noll’s request, they occasionally took longer, and links to transcripts were sometimes broken.
Noll also had access to ASL (American Sign Language) interpreters who provided real-time translation services, either on-site or remotely, for intranet content as well as for live meetings, which he found to be effective. Noll didn’t like the ASL interpreters for intranet content because he found it “confusing and tiring” to look back and forth between the videos and the interpreter.
On this basis, Noll filed a lawsuit in 2012 alleging that IBM discriminated against him and failed to provide a reasonable accommodation with respect to intranet access, thus violating the Americans with Disability Act (ADA). Noll wanted all intranet videos to be captioned and all audio files to have transcripts. Although not discussed in the case, the cost of Noll’s requested accommodation would be astronomical.
At the trial court, IBM moved for Summary Judgement and won. The trial court reasoned that IBM provided ASL interpreters as a reasonable accommodation. The regulations state that the provision of ASL interpreters is one of many types of reasonable accommodations for hearing-impaired employees. The trial court then held that IBM did engage in an interactive process to identify a reasonable accommodation.
On appeal Noll argued that an employer’s failure to engage in an interactive process suffices for a disability discrimination claim, even if reasonable accommodation was made. The 2nd Circuit Court of Appeals disagreed. IBM had already provided a reasonable accommodation and did not have to restart the process simply because the employee did not like the accommodation, although generally reasonable.
Based on the evidence presented, Noll was fluent in ASL. The use of ASL interpreters worked for live meetings. Further, there was no evidence presented that the interpreters IBM provided were unqualified or that the use of interpreters was somehow inconsistent with Noll’s position as a software engineer. Noll’s only objection was that he had to look back and forth between an interpreter and his screen. The court ruled that without more evidence, mere inconvenience would now make that accommodation unreasonable.
Noll then argued that IBM should have reengaged in the interactive process when he presented the problems of the ASL Interpreters with the intranet content. The 2nd Circuit did not agree and stated that the ADA imposes no liability for an employer’s failure to explore alternative accommodations when the accommodations provided to the employee were plainly reasonable. An accommodation does not have to be the best; it only has to be reasonable. The ASL Interpreters were a reasonable accommodation, despite the inconvenience to Noll.
The takeaway is simple. Employers need to engage in an interactive discussion when a request for an accommodation is made, and the employer makes the final decision as to what the accommodation is, as long as it is reasonable. Further, the fact that a reasonable accommodation becomes merely inconvenient for the employee would not generally require the employer to reopen discussions.