For this employer, if only the EEOC’s hearing disability guidance had come out sooner

Yesterday, I told you about the EEOC’s new resource document for assisting individuals with hearing disabilities. Today, I’ll tell you how the Second Circuit Court of Appeals breathed new life into the failure-to-accommodate claims of a deaf individual who worked as a case manager for a city’s Human Resources Administration (HRA).

So, thank you, blogging gods, for the impeccable timing.

Now, let me tell you about the lawsuit.

According to the plaintiff, she communicates primarily using American Sign Language. Therefore, she requires accommodations to meaningfully complete her professional responsibilities as an HRA case manager. Among other things, her responsibilities include lots of phone calls and client interactions. So, the plaintiff requested a video phone.

And then she waited.

The plaintiff claimed that, for approximately two months, the City did not provide the plaintiff with a video phone. Then, it gave her one it knew would not work without certain additional equipment. After another month, it provided the missing equipment, but the videophone stopped working two months later, in early 2020.

The plaintiff says she asked the City for help — even got the outside vendor that installed the device involved. But, she claims the City ignored their repeated requests to assist her.

So, she filed a lawsuit alleging a violation of the Rehabilitation Act, which essentially mirrors the Americans with Disabilities Act.

Under the ADA and the Rehabilitation Act, a plaintiff alleging a failure to accommodate must establish that the employer refused to make requested, reasonable accommodations.

The Rehabilitation Act contemplates that employers will engage in an interactive process with their employees and, in that way, work together to assess whether an employee’s disability can be reasonably accommodated. A failure-to-accommodate claim does not require a showing of discriminatory intent. Instead, it may be inferred when a qualifying official or policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result.

Here, the facts pled in the plaintiff’s amended complaint — what I summarized above — indicated that the City was deliberately indifferent to her need for this accommodation. So, her claim survived a motion to dismiss it.

Does this mean that the plaintiff will eventually win her lawsuit? Not necessarily.

It seems that firewall issues may have prevented a successful reasonable accommodation. Indeed, the City may later defend the claim by arguing that it needed firewalls to protect the privacy of the HRA’s clientele, and removing them would create an undue hardship to accommodate the plaintiff. The EEOC acknowledges that this argument applies fully when accommodating individuals with hearing disabilities. But, the burden is on the City to prove it.

If you encounter a situation in which undue hardship prevents accommodating an employee with a disability, be prepared to complete this sentence in realtime: The accommodation you have requested creates an undue hardship for our business because ____________. Then, offer a different solution, ask the plaintiff to propose alternatives, or both.

Employers that can establish that they acted in good faith win lawsuits or avoid them altogether.