by Steven Mendelsohn
[Editor's Note: How often have we heard the term "undue hardship" in regards to employer's reasons for failing to make reasonable accommodations for their
employees? How repeatedly are we reminded that if only universal design principles would be applied, we could keep technology costs down? A recent court
decision speaks to these important issues.
This article is adapted with permission from the author. Steven Mendelsohn's forthcoming book, "People with Disabilities and Employment Law" will be available
later this year. The second part of this article will appear in the Summer BC.]
Jury trials are rare in this country. Most cases, including most disability rights cases, are resolved without them. But a recent federal district court
jury verdict February 26, 2016 in Reyazuddin' v. Montgomery County, MD may take its place as one of the most important civil rights verdicts ever reached.
The case asks whether it is a denial of reasonable accommodations for a public-sector employer to refuse to make workplace technology accessible to an
employee who is blind. Although the facts of each case are crucial, the Reyazuddin case stands for the proposition that denial of accessibility to the
technology needed to perform one's job can be a form of employment discrimination.
To understand the significance of the decision, its long history must be reviewed. Last month's verdict was the culmination of a 5 year struggle that
began with a decision in favor of the employer by the federal district court, then proceeded to reversal of that decision by the appeals court, followed
by the trial ordered by that appeals court.
Montgomery County, MD decided to consolidate the customer service functions of various agencies into one centralized call center, to be known as MC 311.
The county did not consider accessibility in the procurement of technology for MC 311 and had never asked any of the bidders about the accessibility of
their products. Long after all the key procurement, design and budgetary decisions had been made, the county discovered that among the workers it planned
to transfer to the new call center was an employee who was blind. The county also discovered that the new system was inaccessible to her. After the failure,
under disputed circumstances, of attempts to reasonably-accommodate Reyazuddin by transferring her to another job (where the MC 311 system would not be
used) she filed suit under Sec. 504 of the Federal Rehabilitation Act, alleging discrimination by an entity receiving "federal financial assistance" (namely
the county government). Virtually all state and local governments receive federal financial assistance, so are subject to the nondiscrimination requirements
of Sec. 504. Reyazuddin also filed suit under Title II of the Americans with Disabilities Act (the ADA) (which covers the activities of state and local
governments).
The First Court Decision
The district court granted summary judgment to the defendant (the county), thus dismissing Reyazuddin's complaint without a trial. In reaching its decision,
the district court ruled, among other things, that requiring the MC 311 system to be made accessible would constitute an "undue hardship" to the county
"as a matter of law." Undue hardship (usually but not solely defined in financial terms) is one defense available to employers in disability discrimination
cases. If an accommodation would constitute an undue hardship, the employer is excused from the obligation to provide it.
The district court's decision, and perhaps even more the reasoning underlying it, provoked outrage and anxiety among people with disabilities and advocates.
A vigorous appeal was filed and in June, 2015, the US Court of Appeals for the Fourth Circuit reversed key portions of the district court decision and
sent the case back to that court for a trial on the key legal and factual issues.
The Appeals Court Findings
The appeals court found in Reyazuddin's favor on her Sec. 504 claim. The district court had been wrong to dismiss that claim and it was reinstated. But
the appeals court affirmed the district court's dismissal of Reyazuddin's ADA claim, so the ADA was out of the case.
Before discussing Reyazuddin's successful Sec. 504 claim, it is important to explain why her ADA claim failed. Reyazuddin had brought her ADA claim under
the wrong part of the ADA. She filed suit under Title II of the ADA (which covers the activities of state and local governments). The appeals court ruled
that Title I of the ADA (covering employment discrimination) was the part of the law Reyazuddin should have used. The court does not opine on what the
outcome might have been if Reyazuddin had used Title I, but the likelihood is that she would have won. This matters because with private sector or nonprofit
employers (unless they are receiving federal financial assistance) Sec. 504 will not be available. In any event, Sec. 504 still got Reyazuddin where she
needed to go.
The Sec. 504 Claim
The appeals court ruled that the Sec. 504 claim should be reinstated and allowed to go to trial on whether Reyazuddin could perform the essential job functions
of a call center employee, whether the County reasonably accommodated her, and if the County did not, whether its failure could be excused under the defense
of undue hardship. These were the questions raised by the evidence and it had been wrong for the trial court to decide them summarily. These were the
issues framing the jury trial that took place last month.
The appeals court's opinion did give the trial court considerable guidance on how these key issues should be approached, and on how the evidence should
be evaluated.
The Appeals Court's Guidance
The appellate court's narration of the history of the case gives us a detailed look into its thinking that would guide the district court later. It recounted
the history of the procurement of the MC 311 software, including the fact that it can be operated in two different modes. According to the testimony,
the "high-interactivity" mode is not accessible because using a "technology that screen reader software cannot interpret." The court then went on to briefly
explain what screen-reader technology does. "Standard interactivity mode" is accessible because "written in standard HTML and JavaScript, which are compatible
with screen reader software." The county's license allowed running the software in either mode, but the county chose to deploy it in the first mode only.
By the time, 11 months after procuring its license, the county got around to asking Oracle about accessibility, the company estimated that it would cost
$200,000 to make the Siebel software accessible through standard-interactivity mode, and even then three features would not be. Over the next year, the
county received steadily rising cost estimates of accessibility from the subcontractor hired by Oracle to configure the system.
In October, 2009 Reyazuddin's unit was transferred to the new call center, but because of its inaccessibility, not Reyazuddin. Instead she was assigned
and reassigned to units that had not yet been integrated into MC 311. Though still employed fulltime, there was little work for her to do, and email among
various supervisors expressed concern about the "make-work" nature of her position. In October 2011, Reyazuddin was informed that she would not be transferred
to MC 311, as she still hoped and expected, and that it would not be made accessible because it was "too expensive for the County to make the software
accessible."
Reyazuddin suggested two possible accessibility fixes (two reasonable accommodations that would allow her to perform the essential job functions of an
MC 311 employee). The county rejected both options, contending that its decision to configure the system in the high-interactivity mode only was necessary
to promote worker efficiency while keeping costs as low as possible. In rejecting this defense, the court noted the county had presented no evidence about
worker productivity while working in the high-interactivity mode. Thus, its claims were speculative. Nor could the court accept the claim that using
the high-interactivity mode was an "essential job function," especially in light of Reyazuddin's evidence about other call centers operating without it.
In reaching its decision, the district court had never addressed the reasonableness of Reyazuddin's proposed accommodations. Instead it had limited its
reasonable accommodations analysis to the finding that the county had met its obligations by offering Reyazuddin alternative employment. However, the
district court had never considered whether that alternative employment was "equivalent" to Reyazuddin's former job.
Reasonable Accommodations
In deciding that the reassignment was a reasonable accommodation, the district court had taken upon itself to decide a key factual question that, without
evidence, it had no right to decide at the summary judgment stage of the case. Although the law grants employers wide latitude in deciding which reasonable
accommodation to provide when more than one is available, the appeals court emphasized that for an accommodation to be reasonable it "should provide a
meaningful equal employment opportunity. Meaningful equal employment opportunity means an opportunity to attain the same level of performance as is available
to nondisabled employees having similar skills and abilities."
Here, although Reyazuddin kept her same salary, "the County cobbled together an assortment of make-work tasks that did not amount to full-time employment."
In the county's view, reassignment was enough to meet its reasonable accommodations obligations. But the appeals court understood that make-work reassignments
wouldn't do, even if pay and benefits were left unchanged. The appeals court understood that if cutting wages or benefits were the only test, employers
might find it expedient to absorb the salary of a marginalized employee rather than make technological or procedural changes in the workplace.
That is why the articulation by this Reyazuddin court of the "meaningful equal employment opportunity" standard for evaluating reassignments is so important.
