Litigation Lens: Unpacking ADA Compliance After the Second Circuit’s Expansive Ruling

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Michael Nail: Ogletree podcast listeners, Michael Nail here. I’m a litigator in Ogletree’s Greenville, South Carolina office. And I’m coming at you with a second episode of Litigation Lens, where our Ogletree attorneys will bring the law to life with recent noteworthy employment law cases coupled with practical takeaways. During this series, you’ll hear about real cases with real outcomes analyzed by Ogletree lawyers across the country in numerous practice areas.
And today you have the second episode, which is focused on a recent case from the Second Circuit Court of Appeals involving a key issue under the Americans with Disabilities Act. And just like the very first episode of Litigation Lens, I have Sarah Zucco from our New York City office. She’s back with me today, as well as Fiona Ong, a shareholder in Ogletree’s Baltimore office. So, Sarah, glad to have you back. How are you doing today?

Sarah Zucco: Hi Michael. Thanks for having me back. As Michael said, I’m an attorney in Ogletree’s New York City office. I litigate employment cases, but I also counsel employers on various employment laws.

Michael Nail: And Fiona, good to have you join us today. How are you?

Fiona Ong: I’m doing great. Thank you so much, and thank you for inviting me to join you. As you said, I’m a shareholder in Ogletree’s relatively new Baltimore office, and I do a lot of advice and counsel. I litigate a little bit, and I also do a lot of multi-state compliance issues.

Michael Nail: Okay, great. Well, let’s dive right in. I’m going to start with a very brief introduction. Just give the listeners a very basic, high-level framework of some of the legal issues that we’re dealing with under the ADA. And I’m going to start with a quote that comes directly from this case that we’re going to be talking about today, and that is a straightforward reading of the ADA confirms that, “An employee may qualify for reasonable accommodation even if she can perform the central functions of the job without the accommodation. Ability to perform the essential functions of the job is relevant to a failure-to-accommodate claim, but it is not dispositive.” That’s a quote directly from this case, and we’re going to talk about that in more detail. But to take even more of a step back, and this is a very basic, high-level overview of the ADA, but it’s important because the court also started its analysis with these issues as well. And that is that the ADA provides that, “No covered entity shall discriminate against a qualified individual on the basis of a disability in regards to the terms, conditions, and privileges of employment.” So, how does the ADA define a qualified individual? It says in relevant part, “An individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” And another concept to keep in mind as we discuss this case is the court recognized the ADA is broadly construed to effectuate its purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. So with that framework in mind, I’m going to pass it off to Sarah to talk a little bit about the facts of this case.

Sarah Zucco: Thanks, Michael. So, in this case, we have the plaintiff, who’s a math teacher that worked at a public high school in New York for 20 years. She suffers from post-traumatic stress disorder, PTSD, stemming from workplace harassment and an assault that happened at a prior employer. Specifically, her PTSD causes severe symptoms such as neurological issues. She has communication difficulties and anxiety.
To manage these symptoms, she takes multiple medications and attends therapy. In 2008, the teacher’s PTSD escalated beyond her ability to manage the symptoms with therapy and medication. So, as a result, she sought and received an accommodation from the school, her employer, that allowed her to leave campus for a 15-minute break during each of her morning and afternoon prep periods.
So essentially, she got two 15-minute breaks where she wasn’t responsible for overseeing students in these breaks, and she was able to leave the school during these breaks. According to the teacher, she used the breaks to compose herself away from the workplace, which is an environment that tends to trigger her symptoms. For the next eight years, this teacher continued to receive this accommodation of the two 15-minute breaks, one in the morning and one in the afternoon. And there was no issue with her taking these during her prep periods.
Fast-forward to 2016, the school administration changes, and they implement a policy that prohibits teachers from leaving school grounds during prep periods, which is when this teacher would leave for 15 minutes to compose herself as part of her accommodation. So, the teacher continues to take these breaks and is disciplined for insubordination. When that happens, she tells the administration of her long-standing accommodation that she got to take these 15-minute breaks during her prep session.
In response, the school tells her the documentation on file isn’t sufficient to establish a right for a reasonable accommodation. So instead of providing additional documentation here, the teacher took sick time that was paid and then a leave of absence under the Family and Medical Leave Act, FMLA. She returned from FMLA leave, the school provided her with one 15-minute break in the morning and then a 15-minute break in the afternoon, as long as a school librarian could watch her students in this afternoon break.
So, if the school librarian was unavailable, then she could not take the afternoon break. The court noted that this arrangement occurred for two school years and it’s subject to a separate lawsuit, which they didn’t address. So, the court moves on to the 2019, 2020 school year, which is at issue in this case. And during this school year, there was no school staff member or employee, including the librarian, that could cover this afternoon break. So, the teacher was unable to have the afternoon break.
She was allowed to take 15 minutes in the morning, but not in the afternoon. Regardless of this, the teacher takes the 15-minute break and goes against school policy. And because of this, the teacher claims that her anxiety increased because she felt like she was violating school policy by still taking these breaks even though she wasn’t allowed to. As a result, the teacher sued the school district for their refusal to guarantee her afternoon break, and she said that that violated the Americans with Disabilities Act, the ADA.
She admitted she could perform her job’s essential functions without an accommodation, but only under great duress and harm. In response, the district court, which reviewed this case first, granted summary judgment to the school district. And they held that because the teacher could perform her job without the accommodation, the afternoon break, she was not entitled to one under the ADA, and that it proceeds to being appealed. And then the Second Circuit is the one that now reviews it, which is what we have for this decision.

Michael Nail: Thank you, Sarah. Fiona, what did the court ultimately decide here?

Fiona Ong: Yeah, so in the Second Circuit previously, as Sarah was just talking about the determination of whether the employee was going to be entitled to a reasonable accommodation apparently turned on whether or not they could perform the essential functions of their job without one. But here, the Second Circuit look to the language of the ADA. Now, remember, the law protects qualified individuals who are defined as those who can perform the essential functions with or without reasonable accommodation.
And that protection includes providing reasonable accommodations. So here, the court held that, and I’m going to quote, “An employer must, absent undue hardship, offer a reasonable accommodation to an employee with a disability if the employee is capable of performing the essential functions of her job with or without the accommodation.” So, it really mimics the definition in the law. And the next question is, then when does the employer have to provide that reasonable accommodation?
So, a lot of employers in courts had focused just on enabling the employee to perform the essential functions of the job, but this case actually provides a good reminder that the accommodations are required beyond that. So, the definition of reasonable accommodation and when it’s required is really not very fleshed out in the law. But the EEOC, the Equal Employment Opportunity Commission, has issued regulations to implement the ADA.
And those regulations explain that the reasonable accommodation obligation includes modifications or adjustments to the work environment or the way the job is reformed that enable an employee to perform the essential functions of that position, but also that enable the employee to enjoy equal benefits and privileges of employment as other non-disabled employees. So, this decision isn’t actually groundbreaking.
The Second Circuit cites eight other federal circuit courts that have recognized that reasonable accommodations aren’t just required to enable the employee to perform their essential job functions. The court here acknowledges that the reasonableness of an accommodation is going to be a really fact-specific question. And here the court said it’s not considering the extent to which the necessity of the accommodation to the performance of essential functions is relevant to a failure to accommodate claim.
They were only ruling that the necessity of the accommodation is not dispositive of such a claim. So, the court made a couple of really significant comments here. First, it recognized that, “The ADA doesn’t require the perfect elimination of all disadvantage that may flow from the disability.” That’s another direct quote. But they also say that in at least some circumstances, the ADA requires an employer to offer accommodations that mitigate, if not necessarily eliminate, an employee’s disability-related pain.
Now, they were focusing on pain in that instance, and they were citing to another case in which they were saying, “Look…” or the other court was saying, “If an employee can be given an accommodation that reduces the pain that they experience when they’re performing their essential functions, they would have to be provided that reasonable accommodation absent an undue hardship.” Here, the Second Circuit also noted that other defenses can be raised when the case gets set back to the federal district court on remand.
So some of the things that the district court can look at are whether the employee has a qualifying disability and what accommodation would be reasonable under the circumstances. Also, the employer could challenge at that point whether the accommodation would impose an undue hardship. But here, where there has been this history of the accommodation, the court suggested that it might already be reasonable.
But the bottom line here is that the court said, and I quote, “We hold only that accommodations that are not strictly necessary for an employee’s performance of an essential job function may still be reasonable and therefore required by the ADA.” And I think that’s a bottom line there.

Michael Nail: Well, that’s absolutely right. And you’re right. This really isn’t a groundbreaking decision because the court’s decision falls in line with many other circuit courts. I believe you mentioned eight circuit courts that the court recognized held in a similar fashion in other cases, but the ADA can still get employers tripped up, and perhaps one of the reasons for that is because it truly is a fact-intensive inquiry as to what is reasonable. Would you agree with me on that?

Fiona Ong: Yeah, absolutely. I think the lesson here is that every employee that has a disability might be entitled to a reasonable accommodation. I do want to remind you all that under the ADA regulations, there is no accommodation necessary for those with a record of disability or those who are regarded as disabled. And both of those are part of the disability definition under the ADA.
So just because an employee is, quote, unquote, disabled, if they fall within one of these other two parts of the definition, they’re not going to be entitled to a reasonable accommodation. So, we are really focusing on those with actual and current disabilities. And in terms of those folks, I think it’s an issue of what is their level of need because I think what need is going to determine whether a particular accommodation is going to be reasonable under those specific circumstances.

Sarah Zucco: Yeah. And the court really seems to highlight here the difference between necessity and reasonableness by focusing on accommodation that alleviates pain, distress, or other disability-related disadvantages may still be required even if that employee could do the job without the accommodation.

Fiona Ong: Yeah, I think, actually, it raises a question of whether employers have to accommodate everything that might be helpful to an employee’s performance of their essential job function, even if it’s not necessary. I mean, just as you were saying, Sarah.
And I think this ruling highlights the fact that, yeah, they might actually have to do that. The Second Circuit does say that you’re going to have to offer accommodations that mitigate, even if they don’t necessarily eliminate an employee’s disability related pain. So that’s a pretty big distinction, I think, from the way that a lot of people thought traditionally, the obligation under the ADA.
And I think a lot of that is because there was so much focus on the performance of essential job functions and maybe less on the requirement that reasonable accommodations should be provided so that employees could also enjoy similar benefits and privileges to others.

Michael Nail: Now, those are all good points. And before we wrap up, I have to say this and that is that employers should also be mindful of other state, city, or local jurisdictions where standards for disability discrimination claims might be more lenient under those particular human rights laws. So, understanding how the ADA works, as well as any state, city, or local requirements, is also important. But be sure to stay tuned for more as it relates to the Litigation Lens podcast.

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