LAW ALERT: Ninth Circuit Rules Disability Accommodations Must be Both Reasonable and Effective
September 9, 2010
A recent opinion from a federal appellate court serves as yet another cautionary tale for employers in the area of disability accommodations. The Ninth U.S. Circuit Court of Appeals’ decision in EEOC v. UPS Supply Chain Solutions suggests that employers must take proactive steps to ensure that accommodations being provided to a given disabled employee are not only reasonable but effective. The outcome in this case also underscores the need to commence and continue the interactive process and to consult with legal counsel promptly when confronted with disability-accommodation requests or issues.
Mauricio Centeno, who was deaf since birth, worked as a junior clerk in the accounting department at a UPS facility in California. He was able to perform his job duties without a sign-language interpreter. However, he sent a number of email messages to his supervisors between 2002 and 2005 requesting a sign-language interpreter to assist him in department meetings. UPS agreed to provide an interpreter at monthly meetings but not weekly ones. Additionally, UPS arranged to provide Centeno with notes or other summaries of discussions at the weekly meetings. UPS also urged him to refer to a dictionary to learn the meaning of any words in those notes or summaries that he did not understand, even though he reported that he did not comprehend some written communication.
At one point in April 2005, Centeno “said an inappropriate word and made an inappropriate gesture” to some coworkers who had angered him. UPS provided a sign-language interpreter upon meeting with Centeno to discuss the incident, and also during a subsequent meeting to explain terms that Centeno did not understand in a written warning given to him. However, UPS did not provide a sign-language interpreter in a later meeting to explain terms that Centeno did not comprehend in the company’s sexual-harassment policy and in a quiz concerning the application of that policy.
In performance reviews between 2002 and 2006, supervisors repeatedly criticized Centeno for failing to obtain training on an Excel spreadsheet program. However, Centeno could not understand the written materials regarding use of the Excel spreadsheet. After setting a December 2007 deadline for Centeno to complete such training, UPS ultimately provided a sign-language interpreter to assist him – but not until September 2007.
Although there is no indication that UPS ever disciplined Centeno inappropriately, the EEOC filed a lawsuit in federal court alleging that UPS had failed to reasonably accommodate Centeno’s disability. The lower court dismissed the case without a trial, ruling that UPS was not required to provide a sign-language interpreter to accompany Centeno during regular staff meetings, routine disciplinary sessions, or training seminars. However, the appellate court ruled that a jury trial was needed to decide whether UPS had provided reasonable accommodations.
In particular, the Ninth Circuit was persuaded by the fact that Centeno “did not have an opportunity to express his questions . . . or share his ideas with the rest of the department” at the weekly meetings. Thus, the Court of Appeals ruled that a jury should determine “whether the agendas, contemporaneous notes, and written summaries contained information sufficient to enable a [hearing-impaired] person reading those documents to enjoy the same benefits and privileges of attending and participating in the weekly meetings [sessions and seminars] as other employees.”
Likewise, regarding the Excel training, the appellate court said a jury would have to weigh the facts to decide whether UPS improperly delayed in terms of providing Centeno “with the accommodation he needed in order to receive the training.” Finally, the Ninth Circuit opined that reasonable jurors “could conclude that . . . UPS was aware or should have been aware that Centeno needed an . . . interpreter to understand the Anti-Harassment Policy” even if he did not expressly request such an interpreter at that time. Although “an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers,” the appellate court concluded that “an employer cannot satisfy its obligations under the ADA by providing an ineffective modification.”
While this case involved a deaf employee, the decision should not be viewed as applying only to accommodations for hearing impairments. On the contrary, the opinion highlights the importance of monitoring accommodations provided to an employee to make sure that they are enabling the employee to realize all the benefits and privileges of employment. Similarly, it is vital for employers to make sure that a disabled employee is given all reasonable tools that are needed to understand workplace policies and procedures. It is not sufficient that the accommodations merely enable the employee to avoid discipline.
This decision also reinforces the need to engage the interactive process right away, to monitor periodically the effectiveness of any accommodation provided, and to consult with legal counsel regarding what may or may not constitute a reasonable and effective accommodation. Taking such steps may seem onerous, but they often help employers to reduce their exposure to disability-discrimination claims. At the same time, such precautions are usually economical by comparison to the costs associated with litigation.
Brendan J. Begley is an associate at Weintraub Genshlea Chediak and spearheads the firm’s Appeals and Writs group and is a member of the firm’s Labor and Employment and Litigation groups. He represents management in workplace law and litigation, and he is an Appellate Law Specialist certified by the State Bar of California Board of Legal Specialization.If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Brendan J. Begley at (916) 558-6024. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.