ADA’s Interactive Process May Require Employers to Follow Up With Third Parties

Quick Hits

• The EEOC’s recent settlement of a lawsuit related to a company’s alleged failure to accommodate a blind employee’s request to use a screen reader app may highlight for employers the importance of thoroughly evaluating reasonable accommodation requests.
• The EEOC’s lawsuit alleged that the employer had violated the Americans with Disabilities Act by failing to take reasonable steps to facilitate the employee’s use of screen reader software (despite the employer’s having access to available resources and support for the technology) and firing the employee because she required a reasonable accommodation.
• The settlement may serve as a reminder to employers of the value of engaging in a meaningful interactive process that considers available resources when addressing accommodation requests, especially those involving new technologies.

Background

As detailed in the EEOC’s federal complaint, The Results Companies, LLC, hired a blind employee as a telephonic customer service representative for its call center—a role the employee had served in for sixteen years with other employers. Because of her blindness, the employee required a screen reader application, Job Access with Speech (JAWS), to navigate computer desktops and websites.

According to the EEOC, upon her hire by the company, the employee requested to use JAWS as an accommodation for her disability. She provided a copy of JAWS software supplied to her by Texas Workforce Solutions – Vocational Rehabilitation Services (TWS-VRS), a state-run vocational rehabilitation program that assists individuals with disabilities in finding and keeping employment. This software was intended to be installed on the company’s computers for the employee’s use. The company’s IT specialist, who was not familiar with JAWS, found the software to be out of date. The company asked the employee to resign from employment until she obtained the latest version of the software, at which point she would be rehired.

Several months later, after the employee’s TWS-VRS counselor confirmed with the company that the upgraded JAWS software would be compatible with its systems, TWS-VRS purchased the upgraded software and provided it to the IT specialist. At the same time, the employee gave contact information for her TWS-VRS counselor and the publisher of the JAWS software to assist with the installation at no cost to the company.

However, when the employee returned to work the following month, the software still had not been installed, and no one had ever contacted the software publisher. The supervisor and the IT specialist were given two hours to attempt to set up JAWS, but they were unsuccessful. Although the IT specialist told the site operations director (who was the supervisor of the employee’s supervisor) that he thought the compatibility issues could be resolved with more time, that was not permitted. Instead, the employee was discharged from employment.

What the ADA Requires

The Americans with Disabilities Act (ADA) requires employers, absent an undue hardship, to provide reasonable accommodation to employees with disabilities to enable them to perform their essential job functions and enjoy the privileges and benefits of employment. According to the EEOC, an undue hardship means that an accommodation would be unduly costly, extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business. EEOC guidance provides that as part of the reasonable accommodation obligation, employers and employees should engage in an interactive process by which the employer may obtain information about the employee’s work-related limitations and the parties can explore possible accommodations.

The EEOC’s Lawsuit

The EEOC brought suit in federal court on the employee’s behalf, asserting that the company had failed or refused to accommodate the employee’s disability. The EEOC contended that providing her with the use of the JAWS software would not have caused an undue hardship, and that the company failed to avail itself of free and easily accessible resources to resolve compatibility issues with the software that would have allowed the employee to perform her essential job functions.

In announcing the settlement, EEOC district director Travis Nicholson stated, “It is important for employers to meaningfully participate in the interactive process once an employee requests a reasonable accommodation and gather information specific to the situation at hand, even if they may not be familiar with the requested accommodation.” Specifically, regarding the use of software as a reasonable accommodation, EEOC trial attorney Alexa Lang added, “Employers must meaningfully assess their technical capabilities and available resources.”

What Does This Mean for Employers?

This settlement highlights at least two instructive points for employers to consider when facing requests for reasonable accommodation that may be unfamiliar to them. First, relying on tried-and-true ways of performing essential job functions may not always be an adequate defense against an ADA failure-to-accommodate claim, so a thoughtful and thorough exploration of the proposed accommodation may be in order, including by contacting outside resources provided by the employee. This may be even more important when the accommodation involves new technologies. Second, failing to tap available assistance or put adequate time and effort into trying to make technology work can leave an employer open to liability under the ADA.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments with respect to ADA issues and will provide updates on the Leaves of Absence blog as additional information becomes available.

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