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.