reasonable accommodation

For those unfamiliar with the way a lot of Connecticut laws get implemented, October 1st could seem like just another day.  (Though for my kids, they would be impressed that it was a different October 1st in 1982 that EPCOT opened at Disney World.)

But a lot of bills that are passed by the Connecticut General Assembly go into effect on October 1st each year. This year is no exception.

For employers, the biggest of these bills is the new law concerning “Pregnant Women in the Workplace”.  I’ve previously recapped the law for pregnant employees in a prior post way back in May, but because we’re getting close to implementation, it’s time for a little refresher.

Existing law makes it a discriminatory practice to:

  • To terminate a woman’s employment because of her pregnancy;
  • to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;
  • to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;
  • to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

Those rules remain unchanged. But the new law revises some other provisions and adds more to the protections. Effective October 1st, it will now also be unlawful to:

  • Limit, segregate or classify the pregnant employee in a way that would deprive her of employment opportunities due to her pregnancy;
  • Discriminate against an employee or job applicant on the basis of her pregnancy in the terms or conditions of her employment;
  • Fail or refuse to make a reasonable accommodation for an employee or job applicant due to her pregnancy, unless the employer can demonstrate that the accommodation would impose an undue hardship;
  • Deny employment opportunities to an employee or job applicant if the denial is due to the request for a reasonable accommodation due to her pregnancy;
  • Force an employee or job applicant affected by pregnancy to accept a reasonable accommodation if she (i) does not have known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related to her employment;
  • Require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of the leave; and
  • Retaliate against an employee in the terms, conditions or privileges of her employment based upon the employee’s request for a reasonable accommodation.

The changes don’t stop there. The new law also explains that the word “pregnancy” will also include “pregnancy, childbirth or a related condition, including but not limited to, lactation”.  It also expands the definition of “reasonable accommodation ” and “undue hardship”.

  • “Reasonable Accommodation” means, but is not limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignment, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk; and
  • “Undue Hardship” means an action requiring significant difficulty or expense when considered in light of factors such as (A) the nature and cost of the accommodation; (B) the overall financial resources of the employer; (C) the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and (D) the effect on expenses and resources or the impact otherwise of the accommodation upon the operation of the employer.

Continue Reading Two Weeks Until New Protections for Pregnant Employees Become Effective

The Connecticut Appellate Court today released an important disability discrimination decision that gives employers some support for employees who struggle with employees who ask for “accommodations” for an indefinite leave for a medical condition.

The case ostensibly addresses the request for “indefinite leave” which I’ve previously talked about it in prior posts.

But the case boils down to a familiar set of facts for employers. An employee who one day says, “I need to take 30 days off for a medical condition” and leaves the employer to twist without further response. As explained by the court:

The plaintiff informed the defendant that she would be taking a leave of absence, did not provide the defendant with any time frame for her return, and did not respond to the defendant’s subsequent attempts to contact her regarding her request for leave. The plaintiff effectively asked the defendant ‘‘to hold [her] position open indefinitely while [she] attempt[ed] to recover. . . .’’

Under these circumstances, the court said that the Plaintiff cannot establish even a prima facie case of discrimination because she cannot show that she “requested a reasonable accommodation that enabled her to perform the essential functions of the job”.

In doing so, the state court reviewed federal law and noted that “[R]easonable accommodation does not require [an employer] to wait indefinitely
for [the employee’s] medical conditions to be corrected . . . .’’

In this particular case, the court said, the plaintiff, prior to her departure, informed her supervisor that she would be taking leave for ‘‘over thirty days depending on my lung condition . . . .’’  At a subsequent deposition, the court went on to say, the plaintiff was asked, with respect to her request for leave, that ‘‘you didn’t know how long you were going to be out, correct?’’ The plaintiff responded, ‘‘[c]orrect.’’

The forms submitted by the employee at the time were confusing and the Plaintiff did not respond after requests by certified and regular mail by the employer for more information.  When the employee was told to submit information by a date certain and did not do so, the employer just went ahead and fired her. The court upheld that termination.

For employers, the case offers some helpful reminders:

  • Reasonable accommodation is an interactive process. So long as the employer holds up its end, courts will be more inclined to support the employer in the end.
  • Seeking medical documentation from employees regarding their requested leaves is both necessary and essential to defending a claim where the documentation is vague.  Don’t hesitate to followup and set firm deadlines to the employee to provide the information.
  • As always, seek legal counsel to help navigate through this and work through any issues regarding termination.

Employers may feel like anti-discrimination laws are rigid, but there is built-in flexibility for employers if they know where to look.

The case, Thomson v. Department of Social Services, can be downloaded here. 

While the relaunch of the blog has been delayed a bit more (I swear it’s coming soon), it’s time to have another post in the interim. My colleague Gary Starr is back with an interesting decision from the state next door — Massachusetts. As some Connecticut employers cross state lines (and marijuana cases continue to arise), the case is a reminder that the law continues to evolve in unexpected ways.

Many states have approved the use of medical marijuana, despite the fact that the federal government continues to classify marijuana as a Schedule I controlled substance.  As a result there is a tension between state rights to use medical marijuana and federal law prohibiting its possession.

The Massachusetts Supreme Judicial Court had an opportunity to determine how to balance the rights of an employee who had been prescribed and was taking medical marijuana for Crohn’s Disease versus the employer’s interest in complying with federal law and maintaining a drug free work place.  The Court found that the employee had sufficiently alleged that she was a qualified individual with a disability who was entitled to a reasonable accommodation related to use of medical marijuana.

As a result, her firing after testing positive could be challenged and she could pursue a disability discrimination claim under state law.

As part of the hiring process, a new employee was required to take a drug test.  She immediately explained to her supervisor that she suffered from Crohn’s disease and she had been prescribed and was using medical marijuana which was improving her appetite and allowing her to stabilize her weight.  She said that she did not take it before work or during working hours, but that if tested, she would test positive.  After being tested and getting a positive result, the human resource administrator called and fired her.  When the employee tried to explain the she had a prescription, the administrator told her that the company follows federal law, not state law.

The employee ultimately sued in state court claiming that she was being discriminated against because of her disability and that the company had failed to accommodate her disability.

The lower court had dismissed the case, but the highest Massachusetts court concluded that the employee had sufficiently alleged that she had a disability, that she was qualified for the position, and that she was entitled to a reasonable accommodation.  As a result, the case was sent back to the lower court for further proceedings.

The high court, however, also made clear that the employer could still win, but the employer must show that the accommodation was not reasonable and/or caused an undue burden.  The court noted that the employee could not come to work intoxicated, nor could the employee engage in tasks that could pose a risk to the public.

It also noted that if the employer was subject to federal laws related to a drug free work place or similar obligations, then the accommodation could be found unreasonable.

In Massachusetts, employers must not simply apply a drug free work environment policy, but must look at each situation to determine whether the employee is entitled to a reasonable accommodation.  In states that have adopted medical marijuana statutes — like Connecticut — employers must decide whether the employee has a disability, how to handle a request for an accommodation, and whether there is a compelling reason to deny the accommodation based on undue hardship.

It is also critically important to meet with and discuss the situation with the employee to determine whether there is an alternative to the use of medical marijuana and to review how the job is structured to see if the employee can do the essential functions without violating company policies or impairing the company’s business operation.  It is also important to determine the scope of the medical marijuana statute to determine whether employees have additional employment rights under state statutes.

In states where an employee has been prescribed medical marijuana, employers may not be able to fire an employee who has simply failed a drug test.  More questions must be asked before firing someone who tests positive for marijuana.

GA2Today is the last day of the Connecticut General Assembly regular session.  So it’s a good time to take a look at some of the bills pending or passed.  Strangely, things seem pretty quiet on the employment law front.  But after the dust settles, I’ll have another update. Here is where we stand as of early this morning (Wednesday).

  • Last night, the Senate approved of the measure (House Bill 6668) expanding protections in the workplace for workers who are pregnant.  It was previously passed by the House.   I’ve covered the bill in depth before but it now goes on to the Governor for his signature.  The bill, if signed, would become effective October 1, 2017.
  • The House also passed a measure last night (H.B. 6907) that exempts certain professional drivers from coverage under the state’s unemployment law.. The exemption applies to drivers under a contract with another party if the driver meets certain conditions. The measure moves to the Senate but given the backlog of bills today, final passage is definitely unclear.
  • The Senate last night passed a measure (H.B. 7132) that streamlines procedures for filing workers compensation claims.  Currently, the law generally requires private-sector employees seeking workers’ compensation benefits to submit a written notice of claim for compensation to either a workers’ compensation commissioner or their employer’s last known residence or place of business. This bill requires private-sector employees who mail the notice to their employer to do so by certified mail. It also allows employers, except the state and municipalities, to post a copy of where employees must send the notice (presumably a specific address). The posting must be in a workplace location where other labor law posters required by the labor department are prominently displayed.  Under the bill, employers who opt to post such an address must also forward it to the Workers’ Compensation Commission, which must post the address on its website. Employers are responsible for verifying that the information posted at the workplace location is consistent with the information posted on the commission’s website.By law, within 28 days after receiving an employee’s written notice of claim, an employer must either (1) file a notice contesting liability with the compensation commissioner or (2) begin paying workers’ compensation benefits to the injured employee (and retain the ability to contest the claim for up to a year). Employers who do neither of these within 28 days of receiving the notice are conclusively presumed to have accepted the claim’s compensability. Under the bill, if an employer posts an address where employees must send a notice of claim, the countdown to the 28-day deadline begins on the date that the employer receives the notice at the posted address.The bill now moves to the Governor for his review and approval.
  • The General Assembly is also continuing to review a possible Paid Family and Medical Leave insurance scheme.  This bill (S.B. 1) is definitely one to watch over the next day and over any special session as well.
  • Senate Bill 929 would expand whistleblower protections under 31-51m. It has passed the Senate and is awaiting a vote in the House.  Existing law prohibits employers from discharging, disciplining, or otherwise penalizing an employee for certain whistleblowing activities, including reporting suspected illegal conduct to a public body.  This bill additionally prohibits employers from taking such actions against an employee for objecting or refusing to participate in an activity that the employee reasonably believes is illegal. Specifically, it applies to such beliefs about violations or suspected violations of state or federal laws or regulations, municipal ordinances or regulations, or court orders. The bill also (1) extends the time an employee has to file such a lawsuit and (2) adds to the possible remedies available to employees, including punitive damages in certain circumstances.

That seems to be it so far. A lot can change though today and employers should continue to be mindful of the shifting landscape. Even bills that appear “mostly dead” sometimes come back to life at the end — and particularly in special session as well. So stay tuned.

pregnancy1On Tuesday, May 23rd, the Connecticut House of Representatives overwhelmingly passed a measure that would greatly expand the already broad anti-discrimination provision that exist under Connecticut law.  The bill, House Bill 6668, would make several substantive changes to the protections including defining what is a “reasonable accommodation” instead of leaving that determination open.

I’ve previously written extensively about the state laws covering pregnant employees before (here and here for example) so I encourage you to familiarize yourself with the current law so you can fully understand the contemplated change. But I’ll try to break it down here.

Existing law makes it a discriminatory practice to:

  • To terminate a woman’s employment because of her pregnancy;
  • to refuse to grant to that employee a reasonable leave of absence for disability resulting from her pregnancy;
  • to deny to that employee, who is disabled as a result of pregnancy, any compensation to which she is entitled as a result of the accumulation of disability or leave benefits accrued pursuant to plans maintained by the employer;
  • to fail or refuse to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits upon her signifying her intent to return unless, in the case of a private employer, the employer’s circumstances have so changed as to make it impossible or unreasonable to do so.

Those provisions would remain unchanged under the bill.

Existing law also makes it a discriminatory practice to:

  • fail or refuse to make a reasonable effort to transfer a pregnant employee to any suitable temporary position which may be available in any case in which an employee gives written notice of her pregnancy to her employer and the employer or pregnant employee reasonably believes that continued employment in the position held by the pregnant employee may cause injury to the employee or fetus;
  • fail or refuse to inform the pregnant employee that a transfer pursuant to subparagraph (E) of this subdivision may be appealed under the provisions of this chapter; or
  • fail or refuse to inform employees of the employer, by any reasonable means, that they must give written notice of their pregnancy in order to be eligible for transfer to a temporary position; 

The bill would delete those three rules and instead expand existing law to make it a discriminatory practice to:

  • limit, segregate or classify the employee in a way that would deprive her of employment opportunities due to her pregnancy;
  • discriminate against an employee or person seeking employment on the basis of her pregnancy in the terms or conditions of her employment;
  • fail or refuse to make a reasonable accommodation for an employee or person seeking employment due to her pregnancy, unless the employer can demonstrate that such accommodation would impose an undue hardship on such employer;
  • deny employment opportunities to an employee or person seeking employment if such denial is due to the employee’s request for a reasonable accommodation due to her pregnancy;
  • force an employee or person seeking employment affected by pregnancy to accept a reasonable accommodation if such employee or person seeking employment (i) does not have a known limitation related to her pregnancy, or (ii) does not require a reasonable accommodation to perform the essential duties related to her employment;
  • require an employee to take a leave of absence if a reasonable accommodation can be provided in lieu of such leave; and
  • retaliate against an employee in the terms, conditions or privileges of her employment based upon such employee’s request for a reasonable accommodation.

The changes don’t end there.  The bill creates definitions now for “reasonable accommodation” and “undue hardship”.

  • Under the bill, “Reasonable accommodation” means, “but shall not be limited to, being permitted to sit while working, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth or break time and appropriate facilities for expressing breast milk.”
  • And under the bill, “Undue hardship” means an action requiring significant difficulty or expense when considered in light of factors such as (A) the nature and cost of the accommodation; (B) the overall financial resources of the employer; (C) the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and (D) the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.

Contrast that with the ADA’s definition of those terms. If passed, the confusion for employers in interpreting these phrases are going to be plentiful.  The ADA, for example, does not define it so precisely in the law and leaves it to regulations to provide further guidance.  The undue hardship definition tracks closer but still differs:

The term “reasonable accommodation” may include (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-­time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

A) In general. – The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B).

(B) Factors to be considered. – In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include – (i) the nature and cost of the accommodation needed under this chapter; (ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; (iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and (iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity

You will now have the same words mean different things.

Two other notes: First, the bill creates a broad definition of “pregnancy” by not just including the pregnancy and childbirth but also any “related condition, including, but not limited to, lactation”.   Contrast this with the federal Pregnancy Discrimination Act which defines pregnancy to just related medical conditions.

And second, the bill would create a new poster regarding pregnancy discrimination that employers would need to add to their facilities.

The CBIA initially expressed concern about this bill increasing the number of lawsuits and suggesting that “we should consider whether adequate enforcement of existing law is better than making businesses risk endlessly litigating what ‘could have been provided’ to employees in the past.”

For employers, this is a bill that warrants close attention; these have the potential to bring the most significant changes to this area of law in well over a decade.

file9281249337561Tomorrow, I’ll be part of a webinar produced by the American Bar Association on reasonable accommodations under the ADA.  You can still sign up here.

The topic page for the webinar gives a fairly concise summary:

A reasonable accommodation under the Americans with Disabilities Act (ADA) is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Leave can be a reasonable accommodation if it does not constitute an undue hardship on the employer. Our panel of experts will discuss what obligations employers have to provide leave as a reasonable accommodation under the ADA, in light of recent case law and the Equal Employment Opportunity Commission’s May 2016 guidance.

The other speakers on the panel are terrific. Lori Ecker is a Plaintiff’s attorney from Chicago; we’ve worked together in the past on ABA issues and she’ll bring a valuable perspective.  Shannon Rennert is a senior staff attorney with the EEOC who has been on top of these issues for years, even issuing letters on the subject.    Janine Martin moderates.

Among the particulars that we will discuss are such tricky topics such as “maximum leave” policies, and unpaid leave as a reasonable accommodation.  I hope you’ll join us.

nurseSo, back in January, I penned a post titled “Can You Fire an Employee Who Has Exhausted FMLA Leave?”

As if to respond, the EEOC yesterday released guidance that basically answers: Not necessarily, because it might violate the Americans with Disabilities Act. 

And that is the crux of the issue for employers.

Before I go further, let’s remember one thing: The ADA is a statute that demands flexibility.  It requires that employers provide “reasonable accommodations” to employees to enable them to perform the essential functions of their job.

The EEOC’s guidance tries to explain this flexibility in various ways.  Sometimes it clarifies the situation; but in other ways, the guidance only serves to create more questions for employers to ponder.

The guidance is broken down into six key areas.

1. Equal Access to Leave Under an Employer’s Leave Policy. This is fairly straightforward; the same leaves of absence rules applicable to employees without disabilities should be applied to those with disabilities.

2. Granting Leave as a Reasonable Accommodation. The EEOC’s continues to argue that an employer must consider providing unpaid leave to an employee with a disability as a reasonable accommodation if the employee requires it, and so long as it does not create an undue hardship for the employer.

3. Leave and the Interactive Process Generally.  The EEOC reminds employers that when an employee requests an accommodation such as leave (and note: such requests rarely come in a neat fashion like “I hereby invoke my rights under the ADA for a reasonable accommodation”), the employer should promptly engage in an “interactive process” with the employee.  This process should focus on the specific reasons the employee needs leave, whether the leave will be a block of time or intermittent, and when the need for leave will end. Even under this instance, the employer may consider the “undue hardship” the leave may have on the workplace.

4. Maximum Leave Policies. Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide or permit, the EEOC argues that employers may have to grant leave beyond this amount as a reasonable accommodation to employees who require it because of a disability, unless the employer can show that doing so will cause an undue hardship.  Thus, policies with hard caps may violate the ADA.

5. Return to Work and Reasonable Accommodation (Including Reassignment).  In this section, the EEOC argues that employers should avoid “100% Healed” policies, which require that an employee be fully recovered before returning to work.  A temporary transfer to a vacant position might allow the employee to return earlier while the employee continues to heal, for example.  Again, the notion of a “reasonable accommodation” and flexibility controls.

6. Undue Hardship. For employers, this may be the last safeguard and one that might need to be used more.  For example, an employer might argue that the duration and frequency of the leave, and the impact on the employer’s business, make such a leave too difficult under the circumstances.  A big plus for employers, however is that an “indefinite leave” — meaning an employee cannot say whether or when she will be able to return to work at all — “will constitute an undue hardship”.  But overall, employers will need to examine such requests on a case-by-case basis.

Jon Hyman of the Ohio Employer Law Blog suggests in his post today that this guidance “goes a long way to answering many of the questions employers will have.”  I respectfully disagree with Jon.  The EEOC’s guidance is an aggressive approach to the law that has yet to be fully tested by the courts.  Rather than create clarity, the guidance pushes the boundaries as to what employers should do. And CT’s anti-discrimination laws have their own requirements which may (or may not) mirror all of the ADA’s requirements.

For example, if an employee cannot do the essential functions of the job he or she was hired for with a reasonable accommodation, why is it reasonable to assign them permanently to another job?

That’s not to say that employers should turn a blind eye to those with disabilities or those in need to some extra time in some circumstances. I’m not advocating that at all; being understanding of your employees is vital being a good employer. And there will be instances where employers will do all that it can to keep a valued employee.

But I worry about the situations in which an employee is abusing leave; there has to be an end point. A point at which the employer can legitimately say “enough is enough.”

And with the EEOC’s guidance, that end point remains as muddy as ever.

firedAn employee of yours goes out on medical leave. Suppose that you only have to abide by the federal FMLA law.  After 12 weeks, the employee is still out.

Can you simply fire the employee?

Well, the U.S. Department of Labor says “yes”.  Sort of.

As part of a Q&A on the subject, the DOL states the following: “Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated “12 month period” no longer have FMLA protections of leave or job restoration.”

Case closed, right?

Not quite.  As Jeff Nowak has pointed out in an excellent (and perhaps overlooked) blog post back in 2014 through an interview with EEOC Commissioner Chai Feldblum, there may be a separate analysis under the ADA as to whether extended leave is needed as a reasonable accommodation.

In that circumstance, an employer can argue that it would be an “undue hardship” to extend leave beyond FMLA leave:

[I]t is critical that employers identify how the requested leave actually impacts their business and operations. Cmmr. Feldblum confirmed that the several factors I identify below can help employers determine whether the requested leave of absence poses an undue burden.  [T]hese factors often are quite helpful in guiding an employer’s decision to grant or deny leave:

  • Significant losses in productivity because work is completed by less effective, temporary workers or last-minute substitutes, or overtired, overburdened employees working overtime who may be slower and more susceptible to error
  • Lower quality and less accountability for quality
  • Lost sales
  • Less responsive customer service and increased customer dissatisfaction
  • Deferred projects
  • Increased burden on management staff required to find replacement workers, or readjust work flow or readjust priorities in light of absent employees
  • Increased stress on overburdened co-workers

Jeff has an additional post this week about a new case discussing this issue further — particularly where the employee cannot give an estimate on when he/she may return to work.

The key takeaway? When you’re analyzing FMLA cases, don’t keep your blinders on. There are other laws that may be impacted. While terminating an employee who has exhausted FMLA leave may be allowed in some (and perhaps many) cases, employees may argue that employers have additional obligations.

And remember: Connecticut FMLA has additional requirements as well.

Beyond the law, there may be other areas of concern — perhaps a union contract or an employee handbook that has additional requirements.

In short, make sure you have all your bases covered before firing an employee who has exhausted FMLA leave.

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.

U.S. Supreme Court
U.S. Supreme Court

Last week, the U.S. Supreme Court decided one of the most anticipated cases in the court’s docket this year — at least for employment lawyers — in Young v. UPS.  There’s been lots of bytes uploaded talking about the case from a federal level.  Much of it is straightforward — in the sense that everyone is trying to figure out how the court’s decision will work in practice.

The crux of the Court’s decision is that pregnancy discrimination cases will now be analyzed using a familiar three-part test that the court uses in other discrimination cases. (It’s called the McDonnell-Douglas test and I’ve talked about it on the blog before.)  From an employer perspective, that’s kind of boring.

As Walter Olsen commented at Cato:

Few non-lawyers are likely to stick around for its dry details, in which Justice Stephen Breyer laid out a balancing test mushy enough in its liberalism to win over Chief Justice Roberts and even Justice Alito. (Readers interested in such matters as McDonnell-Douglas burden-shifting and the selection of similarly situated co-worker “comparators” should follow up at the specialty employment-law blogs.) The practical impact of the case is also somewhat limited by Congress’s having further liberalized pregnancy accommodation law in plaintiffs’ favor after the events being sued over.

In coming to its conclusion, the majority in Young rejected each of the arguments raised by the employee, the employer and the EEOC.  You don’t see that happen all that much in discrimination cases.

And as Jeff Nowak pointed out on the FMLA Insights blog, all the court really did was create the “potential for pregnant employees to secure workplace accommodations by endorsing a balancing test to determine under what circumstances a pregnant employee can prevail on a failure to provide workplace accommodations.”

What’s the problem with this approach? Jon Hyman at Ohio Employer’s Law Blog says Justice Scalia pinpoints it. “By permitting a pregnant worker to establish pretext by demonstrating a disadvantage presented by the application of a facially neutral work rule, the majority’s opinion allows one to establish intentional disparate treatment by demonstrating a disparate impact.”

Of course, most employers will probably never get there because employers will end up accommodating pregnant employees in many instances.

What does this mean for Connecticut employers? Well, as I’ve talked about earlier this month, Connecticut employers have to worry first about the state anti-discrimination laws which are broader than the federal ones.

Connecticut law for example may require an employer to transfer a pregnant employee to a temporary position if she reasonably believes her current position may cause harm to her or her fetus.

So, for employers, the notion that you may have to provide some type of accommodation to your pregnant employees should not be a new concept. What exactly that accommodation may (or may not) be will depend on several factors including how you treat other employees.  Consistency in your approach remains key.  Being considerate and mindful of your obligations will go a long way to reducing your legal risks.