Although the Americans with Disabilities Act (ADA) recently celebrated its 20th anniversary, many employers still have difficulty understanding the scope of the ADA’s requirement to provide reasonable accommodations for employees with disabilities. A recent decision by the Ninth Circuit Court of Appeals highlights the importance of communication between the employer and employee when determining the appropriate reasonable accommodation for a disabled employee, as well as the continuing nature of the employer’s obligation.
An Example of Ineffective Accommodation: EEOC v. UPS Supply Chains Solutions
In 2001, UPS hired Maricio Centeno as a junior clerk in the accounts payable division. Centeno was born deaf, his native language was American Sign Language (ASL) and he could only read and write English at the fourth or fifth grade level. Centeno was able to complete his job responsibilities without the assistance of an ASL interpreter, but required reasonable accommodations to fully enjoy certain benefits and privileges of his position.
UPS held mandatory weekly and monthly accounts payable meetings, but due to his disability, Centeno was unable to understand what was being said during these meetings. In 2002, Centeno requested an ASL interpreter at the meetings. UPS chose to accommodate Centeno by requiring him to attend the meetings and then providing him with written summaries of the meetings after they were concluded. Centeno was unhappy with this accommodation because he received the information at a later time than the rest of the employees, he was unable to voice his opinions or ideas during the meetings, and he frequently did not understand the summaries. Centeno expressed these concerns to UPS and in 2004, UPS responded by having another employee sit with Centeno and take notes for him during the meetings. This accommodation was also ineffective because Centeno could not understand the notes. In 2005, UPS began providing an ASL interpreter for the monthly meetings but not for the weekly meetings.
UPS had similar difficulties providing Centeno with reasonable accommodation regarding other aspects of his job, including assistance with an Excel training program, understanding a written warning regarding a violation of UPS’s anti-harassment policy and understanding and completing a questionnaire on harassment awareness.
The Court’s Decision
Initially, the lower court held in favor of UPS, finding that the accommodations that UPS provided for Centeno were reasonable. The EEOC then appealed to the Ninth Circuit. The issue before the Ninth Circuit was whether UPS provided Centeno with reasonable accommodations under the ADA that would allow him to enjoy the benefits and privileges of his position, including required meetings, job training, understanding the contents of written warnings and comprehending UPS’s harassment awareness questionnaire. UPS argued that it reasonably accommodated Centeno because its modifications were effective.
The Ninth Circuit explained that a reasonable accommodation must allow an employee with a disability to enjoy the same benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities. The employer is required to engage in an “interactive process” with the employee to determine what accommodation is most appropriate. This interactive process requires “(1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee’s request; and (3) offering an accommodation that is reasonable and effective”. Furthermore, an accommodation is ineffective when it does not fully accommodate a disabled individual’s limitations. The Ninth Circuit determined that a jury should decide whether the accommodations UPS implemented were effective, because the issue was not so clear cut that it could be decided by a court. The court noted that an employer is not required to provide an employee with the exact accommodation that he requests, but continuing to utilize an ineffective accommodation is not reasonable.
Lessons for Employers
1. Employers must not only provide reasonable accommodations to disabled employees to ensure they can perform their essential job responsibilities, but also that they are able to fully enjoy the benefits and privileges of their employment.
2. Employers implementing a reasonable accommodation for a disabled employee must engage in an interactive process with the employee to determine if the accommodation is effective.
3. If the employee complains that the accommodations offered are ineffective after trying them, further discussions regarding other alternatives must take place to determine whether an effective accommodation exists.