Most litigation related to disability discrimination involves whether the employer adequately accommodated limitations on an employee’s ability to perform essential job functions. The 9th U.S. Circuit Court of Appeals’ recent opinion in EEOC v. UPS Supply Chain Solutions, 2010 DJDAR 13607 (Aug. 27, 2010), is a reminder that reasonable accommodation obligations are much broader than that.
Like Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) of 1990 prohibits “discrimination” or unequal treatment. Under the Act, employers cannot discriminate “on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. Section 12112(a). Just as refusing to hire an applicant because of her sex or race violates Title VII, the ADA prohibits an employer from rejecting a qualified candidate merely because he has a physical or mental disability.
But the ADA differs from most other anti-discrimination laws in a significant way: it mandates more than “equal” treatment to ensure equal employment opportunity for individuals with disabilities. The term “discriminate” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business….” The requirement of reasonable accommodation is limited to discrimination based on disability and religion. The California Fair Employment and Housing Act contains similar provisions.
Mauricio Centeno, an employee of UPS Supply Chain Solutions, worked in the company’s accounts payable department. Deaf since birth, Centeno’s primary language was American Sign Language. His ability to read English was limited to the fourth grade level. However, Centeno was able to perform his job duties without any reasonable accommodation.
Although he adequately performed his job duties, Centeno had trouble understanding communications in English at meetings, job training, and the written sexual harassment prevention policy. Centeno wanted an American sign language interpreter at these meetings so he could fully and contemporaneously understand what transpired. Because interpreters worked a minimum of two hours and most meetings were shorter than that, the company did not wish to incur the significant expense. As alternatives, UPS Supply Chain attempted to accommodate Centeno by providing him with notes of what transpired at meetings. When Centeno was dissatisfied with this arrangement, the employer had another employee write him contemporaneous notes of the meetings. UPS Supply Chain ultimately provided an interpreter for monthly department meetings, but not for weekly meetings.
UPS Supply Chain also encouraged Centeno to improve his Excel skills. However, the online training course the company offered was in English. After several years, the company provided Centeno with an interpreter.
Finally, on one occasion, Centeno became angry at co-workers and made an inappropriate gesture and comment to them. Managers gave him a written warning, but did not provide an interpreter to read it or to attend the meeting at which they discussed the warning. They later provided an interpreter to clear up any misunderstandings. But the company later administered an anti-harassment “questionnaire” and provided a copy of an anti-harassment policy without furnishing an interpreter.
After investigating Centeno’s complaint of disability discrimination, the Equal Employment Opportunity Commission (EEOC) filed suit against UPS Supply Chain. The agency alleged the company did not effectively accommodate Centeno’s disability with respect to the “terms, conditions and privileges” of employment. The district court held the company adequately accommodated Centeno and granted its motion for summary judgment. But the 9th Circuit disagreed with the district court and reversed.
UPS Supply Chain conceded that attending meetings are part of the “benefits and privileges” of employment, even though they had no bearing on Centeno’s ability to do his job. The 9th Circuit disagreed with UPS Supply Chain’s argument that agendas, contemporaneous notes, and written summaries of meetings were effective forms of accommodation as a matter of law. The court in part relied on EEOC regulations stating effective accommodations are “[m]odifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.”
The court held that there was a triable issue of fact regarding whether UPS Supply Chain’s adjustments provided “equal” benefits and privileges. The court considered several factors, including Centeno’s complaints that the accommodations were not working, UPS Supply Chain’s application of what the court considered to be “arbitrary” criteria for determining when to use interpreters, and UPS Supply Chain’s own assessment of Centeno’s English skills.
Regarding the job training issue, the court found a genuine issue of material fact based on the two-year delay between when Centeno requested training materials in American sign language and when the company furnished the interpreter.
The court also held a trial was necessary to determine whether UPS Supply Chain should have provided an interpreter to help Centeno understand the warning for his misconduct and the anti-harassment policy. The court noted that Centeno complained he did not understand the policy or the warning he received, and that a jury might decide the company’s suggestion that he use a dictionary was not effective.
The court’s analysis of whether UPS Supply Chain was required to accommodate Centeno’s attendance at meetings and job training did not break new ground. The EEOC in its “Enforcement Guidance: Reasonable Accommodation and Undue Hardship,” has defined the benefits and privileges of employment as including “(1) training, (2) services (e.g., employee assistance programs…credit unions, cafeterias, lounges, gymnasiums, auditoriums, transportation), and (3) parties or other social functions (e.g., parties to celebrate retirements and birthdays, and company outings). The court in Bower v. Fed. Express Corp. , 287 F. Supp. 2d 840, 846 (W.D. Tenn. 2003), held that FedEx’s permitting employees to ride for free in “jump seats” was a “fringe benefit” and that employees with disabilities unable to fly in the jump seats were entitled to reasonable accommodations. Other cases involve parking spaces and other benefits unrelated to performance.
However, the court’s extension of the “benefits and privileges” concept to disciplinary action in the UPS Supply Chain decision appears to be an expansion of the law. For example, the 11th U.S. Circuit Court of Appeals, in an unpublished opinion, summarily decided that a deaf employee was not entitled to an interpreter at a meeting to discuss his discharge. See Novella v. Wal-Mart Stores Inc., 226 Fed. Appx. 901, 903 (11th Cir. 2007).
Regardless, this decision is a timely reminder to employers to understand their obligations under the ADA and corresponding state laws prohibiting disability discrimination. The EEOC has dramatically increased its enforcement activity under this administration. The number of discrimination charges filed with the EEOC has increased from about 75,000 in 2007 to over 93,000 last year. The agency filed 76 lawsuits on behalf of employees, claiming disability discrimination last year, up over 100 percent from the prior year. The agency also has publicly asserted its intention to focus on disability discrimination.
To reduce potential liability, employers must understand the scope of “reasonable accommodation.” The employer is responsible to engage in an “interactive process” to determine whether effective accommodations are possible without causing undue hardship to the employer’s business. Employers also must be aware that the accommodation obligation is continuing, and they must have systems in place to monitor whether accommodations are effective. As the Court of Appeals in UPS Supply Chain noted, ineffective accommodations do not provide for “equal” privileges and benefits and, therefore, are not sufficient to avoid discrimination claims.