by Steven Mendelsohn
[Editor's Note: The first part of this article was published in the spring, 2016 BC.]
Undue Hardship
But perhaps the most important part of the decision is the way the appeals court treats the undue hardship defense advanced by the county and relied upon,
without analysis or question, "as a matter of law," by the district court. The heart of the county's argument was that making MC 311 accessible would cost
too much. In explaining why the district court had been wrong, the appeals court began by citing the improper way it had credited the county expert's cost
estimate while rejecting the plaintiff's equally qualified expert's much lower estimate. Apart from the county expert's opinion, which was no better than
the defense expert's, there was no evidence to support the existence of these high accessibility maintenance and upkeep costs. This battle of the experts
was not appropriate for resolution at summary judgment.
But that wasn't the only error in the district court's treatment of the undue hardship defense. "The district court focused almost exclusively on the cost
of the accommodations, without regard to the other statutory factors." The district court had not considered the number of employees working on MC 311,
including the software engineers who said they weren't too busy to deal with it under their existing time commitments. Thus, there was dispute as to how
much if at all additional personnel cost the county would incur from making MC 311 accessible.
But most important, in determining whether making MC 311 accessible would be an undue financial hardship to the county, the district court had ignored
"the considerable savings the County realized from creating a centralized call center ($10 million)." In this connection, the appeals court went on to
note that the district court had relied on an irrelevant factor, "The district court also relied on an irrelevant factor, the county's budget for reasonable
accommodations, in assessing undue hardship. The county had argued that the cost of accessibility would vastly exceed its budget for reasonable accommodations
(the first $500 to be paid for by the employee's department, and remaining costs from a $15,000 line-item in the County's overall budget).
"Allowing the County to prevail on its undue hardship defense based on its own budgeting decisions would effectively cede the legal determination on this
issue to the employer that allegedly failed to accommodate an employee with a disability [in the first place.] Taken to its logical extreme, the employer
could budget $0 for reasonable accommodations and thereby always avoid liability. The County's overall budget ($3.73 billion in fiscal year 2010) and MC
311's operating budget (about $4 million) are relevant factors. But the County's line-item budget for reasonable accommodations is not.
"In effect, the district court reduced a multi-factor analysis to a single factor; cost that the court believed was simply too much for the County to bear.
But while cost is important, it cannot be viewed in isolation. Rather, it is the relative cost, along with other factors, that matters."
A Template for Future Cases
This appeals court analysis provides an excellent template for use by other courts and by workers with disabilities in responding to undue hardship defenses
in technology access cases. After this decision, any court deciding that technology accessibility is too expensive acts arbitrarily if it does not explain
how it reached that conclusion and what other factors besides dollar cost it took into account. After this decision, workers seeking accessibility can
ask the court (can plausibly and rightfully demand to know, through pretrial discovery or otherwise), what significance the court assigns to the fact that
agencies implement new technology because of the cost savings or productivity gains expected to result. How much money the employer expects the underlying
inaccessible technology to save becomes as important as how much accessibility will cost, and the amount in savings or productivity gains expected will
usually be a lot more.
No longer, if the reasoning of this decision is followed by other courts, will public employers be able to argue that the savings and benefits from major
information technology upgrades should be disregarded in determining how much spending on accessibility is appropriate. Until the improbable day when an
agency comes into court with the argument that it didn't intend to save any money or achieve any productivity gains through its major technology upgrade,
the benefits of technology and the costs of access cannot be separated from one another. In the wake of this decision, relative cost and benefit emerge
as the dynamic elements of a sound decisional process.
Calculating the Numbers
There is another key element of the undue hardship issue, but one that was not discussed by the court. It is one that also has great bearing on how undue
hardship claims will be decided in the future. That issue is whether the county's admitted failure to consider accessibility from the outset, in the procurement
and implementation of the system, is itself a violation of the law, as failure to install a ramp at the entrance to a new county building would be. According
to the way the appeals court approached the case, the question of the county's legal obligation (if any) to design-in accessibility from the start was
not up for decision. Nevertheless, because of the significance of the issue in our ever-more technology-dependent work world, and because of the number
of people who will be affected by the answer, the legal question of whether accessibility should have been included in the first place cries out for our
attention.
From the standpoint of undue financial hardship, the cost of making MC 311 accessible will surely be higher as a retrofit or after-the-fact add-on, than
it would have been as an integral element of the original design. From a functional standpoint too, retrofits are rarely as effective as integrated design.
Thus whatever the total amount the court eventually decides the retrofit will cost, incorporating accessibility into the system at the design stage would
almost certainly have proved much less expensive and far more effective. In evaluating an undue hardship claim, one key legal question is therefore which
figure (the cost of retrofitting or the cost of timely incorporation) should be used.
If the county continues to litigate this case after February's powerful jury verdict against it, it will probably continue to argue undue hardship, based
on the cost of retrofitting. In fact, there are already reports that it is upgrading MC 311, once again without accessibility. If this county, or any state
or county, is permitted to include the extra costs of accessibility attributable to belated implementation, thereby inflating the costs of accessibility
over what they would have been if incurred in a timely manner, the county will be rewarded for its flagrant indifference and incompetence. If allowed to
include the entire cost of retrofitting in the cost of accessibility, rather than only what accessibility would have cost if built-in from the beginning,
governments would be allowed to use a cost figure that, because higher than it need have been, increases the possibility that undue hardship will be found
to exist.
Public entities should not be permitted to engage in this sort of gamesmanship. They should not be permitted to forego accessibility in system design on
a bet that no one will later require retrofits at much higher cost. Only the costs of accessibility at the design and contract stage should permissibly
be taken into account in evaluating an undue financial hardship defense. Otherwise, whether the county's undue hardship defense prevails or not, its indifference
to the law goes completely unpunished, and there is no incentive for it to act responsibly when doing so could have made the greatest difference.
Put in equal opportunity terms and paraphrasing the question posed in Reyazuddin's Court of Appeals brief: should an employer be allowed to configure its
workplace in a manner that "screens out" people with disabilities, then when it gets caught, be allowed to argue that the costs of making up for its dereliction
are too high?
By failing to hold the county responsible for screening people out through inaccessible design, the courts would be answering this question with an emphatic
"yes". They would be saying that employers are permitted to configure their technology in a predictably and inevitably exclusionary manner, and then take
budgetary refuge against the consequences of their negligence.
The arguments already made by the county in seeking to justify its behavior make this risk clearer. Seeking to bolster the county's position, the trial
court had noted that county officials, when designing the system, had no way of knowing a blind person would attempt to use it. But why should that matter?
Would a county be permitted to forego installing accessible entrances in a new administration building because no wheelchair users were known to be employed
at the time the building was designed? No! Far from bolstering the defendant's case, the county officials' plea of ignorance, if taken seriously, would
make exclusion permanent and irreparable.
Meaningful Work
The county's attempt to avoid the accessibility problem by reassigning the employee to another job also underscores the inadequacy of traditional forms
of reasonable accommodations in technology settings. The job to which Reyazuddin was reassigned did not entail full-time work, yet she was expected to
be at work full time. Because she was subjected to no loss of salary or benefits, the county believed its accommodation was reasonable. Under the circumstances,
the county probably regarded itself as benevolent for doing this, and probably, no matter what work could or couldn't be found for this employee, the county
had no intention of firing her, even if it meant paying her indefinitely for doing little or nothing except showing up.
This only highlights the dilemma; it doesn't solve it. Loyalty, sentimentality, pity or make-work jobs aside, there simply aren't going to be positions
to which people excluded from their customary work by the introduction of inaccessible technology can be meaningfully reassigned. In the modern office
environment (indeed in almost any contemporary work setting) there aren't going to be many jobs that people unable to access the information technology
can perform, or that will allow them to build skills and careers, or that will enable them to retain self-respect and the respect of their colleagues.
Unless the law addresses technology accessibility head-on, and until government at all levels recognizes that in an increasing number of instances, accessibility
is not one possible accommodation but the only reasonable accommodation, the paradoxical problem of dwindling opportunity will only grow worse. Make-work
jobs that seek to evade anti-discrimination laws at the cost of disregarding the dignity of work and of workers can only delay the reckoning for a little
while. Like the Federal government, states and localities must understand that without ICT accessibility, their commitment to enhancing the number and
quality of job and career opportunities for people with all disabilities will prove hollow, if not hypocritical.
