aslWhat does it really mean to provide a reasonable accommodation to an employee who has a disability?

That’s a question I talk about a bunch with clients.  The employee may request one thing but the employer may think that another accommodation can accomplish close to the same thing, perhaps at a lower cost.  Who wins?

It’s not a new question; I’ve talked about it before here on the blog too.

But a recent case by the Second Circuit adds some layering to that discussion.  The case, Noll v. IBM, isn’t one that you’ll see on the front page of The New York Times.  I found out about it from the always reliable (and underrated) Wait a Second Blog.

That blog’s recap is appropriate here:

Noll worked in Poughkeepsie, N.Y., but IBM is a huge corporation for which internal communication were broadcast over a company-wide intranet. Noll asked for captioning of certain intranet videos or transcripts of audio files. Instead, as noted above, IBM gave him transcripts and access to ASL interpreters. Noll said these alternatives were not good enough it was “confusing and tiring” to look back and forth between the video and the ASL interpreter. Also, it sometimes took five days or longer for transcripts to be made available to Noll, and links to the transcripts were sometimes broken.

The IBM Media Library stores over 46,000 video files (!), only 100 of which were captioned.  As for live meetings, IBM provided him with ASL interpreters and Noll found those to be “effective.”  But he didn’t like the interpreters for the videos because he found it “confusing and tiring.”

The Second Circuit noted that determinations of the reasonableness of accommodations are typically fact-specific, but summary judgment can be granted to an employer if the accommodations are “plainly reasonable.”  (Pro tip: If the court is setting forth this standard, you can figure out where it is headed.)

This is an important point to emphasize and the court seems to be setting forth a standard that hasn’t been utilized much before in discussions. “In other words, the plain reasonableness of the existing accommodation ends the analysis. There is no need to engage in further burden‐shifting to consider whether the employee’s requested accommodation would have been reasonable.”

Reasonable accommodation can take many forms, but must be “effective”, the court said.  And, at the same time, employers are not required to provide the “perfect” accommodation or even the “very accommodation most strongly preferred” by the employee.  “All that is required is effectiveness.” 

Here, the court found that the accommodations from IBM were indeed “effective”.  While Noll said the interpreters were not as effective as captioning and that it was “tiring” to watch it, that objection is not enough to get him to a jury trial, let alone victory.

This disadvantage does not render interpretive services ineffective. A person who is deaf necessarily receives auditory information from other senses (principally sight); so it can be expected that many accommodations of deafness — ASL interpretive services as well as captioning — will tax visual attention to some degree. An accommodation for deafness therefore cannot be rendered ineffective by the need to divide visual attention, without more.

For employers, this is an important case to consider. IBM here had access to many more resources than most employers. And even with all the services it provided, it was sued for still not doing enough. The Second Circuit put an end to that — no doubt after IBM spent significant sums to defend itself.  Smaller employers may not be so fortunate.

Still, for employers, showing that you have entered into the interactive process with employees and provided what it believes to be an “effective” reasonable accommodation can still provide a path to success if sued.

Last week, a story caught my eye and the attention of some of my colleagues.  As reported first by Bloomberg BNA, IBM has stopped providing the comparison information that is typically required in separation agreements for older workers under the Older Workers Benefit Protection Act.

You may be wondering how that is possible.  Robin Shea, of Employment & Labor Insider beat me to the punch with a very good recap that I don’t think I can improve upon.  So I’ll cite two paragraphs below:

As you know, when an employer has a “group termination” — usually, a reduction in force, but a “group” can be as few as two people – it is required to disclose the job titles and ages of the individuals in the “decisional unit,” which means the working unit from which the decisions were made. If the employer doesn’t make the disclosures (and get ‘em right), then it can’t get a valid waiver of age discrimination claims under the federal Age Discrimination in Employment Act although the waiver may be valid in other respects …..

But how can IBM do this?  They aren’t requiring employees to give up their age discrimination claims, that’s how. They’re just requiring them to use arbitration instead of the court system. Which I think is legal, based on Gilmer v. Interstate/Johnson Lane, a Supreme Court decision from the 1990′s.

In essence, IBM is using a separation agreement with two sets of rules: For all claims except age discrimination, employees must release IBM. For age discrimination claims, IBM has said that employees do not have to release IBM but must take any such claims to arbitration.

Will it work? That remains to be seen. It has yet to be challenged in court or the EEOC.

But most employers are not IBM and do not have the resources to take this strategy.

So I suspect that many employers will simply follow the path of least resistance and provide the comparison information under the OWBPA.  If done right, then employers will get the benefit of an additional release without the hassle of arbitration or the added cost.   It’s worked for many employers for over 20 years and, IBM’s strategy notwithstanding, it’s probably not worth changing gears now.

There are many good free resources for additional background on this topic. One that I would suggest was produced by the ABA in 2008 and is still highly relevant today.

In the five plus years of this blog, it’s rare to find topics that I haven’t covered, at least minimally.

One such topic, though, is the notion of “mitigation of damages”.  It is a concept found in lots of cases, but it has particular importance in employment discrimination cases.

An employee who claims he (or she) was wrongfully terminated because of his age, for example, cannot sit by and collect damages if he wins an age discrimination lawsuit. Rather, he must try to mitigate his damages, typically by conducting a job search to find comparable work.

Put another way, if a employee is laid off on a Monday, but is hired by a new employer on Tuesday for the same salary, the employee probably hasn’t suffered any real damages.

Last week, a federal court in Connecticut was confronted with the question of whether an expert can testify about a terminated employee’s failed job search and to what extent.

In Castelluccio v. IBM (download here), the employer wanted an expert to testify that the terminated employee had “not conducted a diligent pursuit of full-time, permanent employment opportunities to find a job.”

The court ruled, in essence, not so fast.  The expert cannot testify that the employee did not conduct a “diligent” job search because that is an “ultimate question in this case which is for the jury to decide.” He is also precluded from testifying that the plaintiff should have found comparable employment within 9-18 months, because it is not “reliable.”

But the expert can testify about the job search itself, including the “nature and degree of efforts which typify an average or successful job search…and how [the plaintiff’s[ efforts compare to what are typical — or successful efforts.”

Thus, testimony that compares the plaintiff’s job search efforts to the industry standard is permissible, so long as it doesn’t go beyond that.

What is also interesting about the case is that another federal court 12 years earlier, had placed the same limits on the testimony by the same expert.

For employers, the case is a useful example of what type of evidence is required of a terminated employee to mitigate his damages, and what type of testimony can be elicited by an expert to rebut that evidence.

At a minimum, employers faced with a termination claim should consider whether mitigation of damages will be a viable defense that may cut off damages at some point.

Although we already have record registration for our next webinar (scheduled for Wednesday, August 12th at noon EDT), it’s not too late to register here. At this webinar, I’ll discuss the basics of some of the most popular social media platforms (like Twitter) and the effect and implications that these sites have on your workplace.  

The webinar will also discuss potential policies and procedures that can be implemented to ensure that your company takes advantage of the latest technologies (while keeping productivity and security high).  

Although the webinar will have a Connecticut base, it’ll discuss laws that affect employers nationwide.  And most importantly, my first hand experience with these sites can hopefully separate out fact from fiction.

Best of all: The webinar is free of charge.

For extra credit ahead of the webinar, there are a few sources that I’d recommend reading:

  • Want to see a company policy that provides guidelines instead of merely a list of restrictions? We’ll take a look at the social media policy created by IBM.  While it needs to be tailored to a particular company, it discusses a lot of concepts that are important to get. 
  • Looking for another alternative? Doug Cornelius of the Compliance Building blog, has his own set of suggestions for a social media policy. It’s well worth taking a look.  A more recent example is Connecticut’s own ESPN; its set of guidelines are a bit more restrictive, which makes sense given that the  company that is in the business of providing content. 

I look forward to having you on the webinar. If you have any questions (particularly those you’d like discussed at the webinar), feel free to send me a message on Twitter @danielschwartz or e-mail at dschwartz@pullcom.com.

Been a long week, the weather in Connecticut is turning icy, and well, there’s just enough time for some short updates today.  Fortunately, the Super Bowl is coming and my New York Giants are still playing (no predictions here on a winner, however.)  And Groundhog day is tomorrow; an article below suggests that it may hold more meaning, if you’ve ever seen the Bill Murray movie.

Here’s some things you might have missed this week that are worth taking a look at.

  • Robert Fitzpatrick, who publishes the (somewhat wordy title of) Washington D.C., Virginia and Maryland Employment and Labor Law Blog, has an interesting post about company blogging policies.  It’s a good continuing of a post I wrote last fall on a similar subject.   In that same post, he also notes that there is some additional whistleblower protection to certain defense contractors built into the large defense spending bill signed earlier this week.
  • Michael Fox has a thoughtful post continuing a blogosphere discussion on the unintended consequences of various employment laws. Something to think about as Congress debates various new employment provisions.
  • The Strategic HR Lawyer has a fun post about "Super Bowl flu" — which afflicts an estimated 1.5 million Americans each year.  (The remedy, I’ve been told, is a day of fasting to make up for all the pizza being eaten on Super Bowl Sunday.)
  • From an HR perspective, Business Week has a good article this week about the "Groundhog Day Effect". Yes, someone has taken that classic Bill Murray movie and made a book out of it — with workplace lessons for us all. (Reliving the same day over and over again is not required.)
  • The Evil Hr Lady, and the HR Capitalist have a series of posts about IBM’s recent decision to reclassify workers as non-exempt (and therefore eligible for overtime). As a result, IBM has also reduced these employees’ base pay.  While it may make for a difficult human resources explanation, it is a workable solution to a difficult issue.
  • The WSJ Law Blog has a good post warning litigants not to use their work e-mail to discuss their cases with their lawyers. For companies, it’s a good reminder that monitoring employees’ e-mails may lead to some interesting discoveries.

And finally, on a purely frivolous Friday note, if you’re interested in tracking the goings on of a famous Groundhog, you can view the "official" club site here

Happy Groundhog Day and go Giants!