How much accommodation is enough? There is surprisingly little caselaw on the subject. Most issues arising under the old ADA concerned whether a person was truly a person with disability.Now that the ADA hs been substantially amended, we will surely start seeing more accommodation issues. In EEOC v. UPS Supply Chain Solutions, we see a case addressing the issue of how much accommodation is "reasonable." In this case, the employee had been deaf since birth. His first and primary language was American Sign Language. He reads and writes at the 4th grade level. That is not unusual for people who have been deaf since birth. Many ASL signs do not correlate to written words, and vice versa.
In this case, UPS used an ASL translator sometimes but often relied on written communication. When the employee would not know a written word, they would tell him to look it up in the dictionary. When that did not help, UPS provided nothing further. The employer held weekly and monthly meetings – the employer relied on written agendas, notes and emails to convey the information in these meetings to the employee, Mauricio Centeno. The company refused to provide an interpreter for meetings that lasted less than two hours. That level of accommodation is not enough, according to regulation. Lack of a translator at key meetings is the same as no translator at all. Centeno said he could not understand what was in some of the written communications. UPS would not hire a translator for the weekly and monthly meetings and trainings.
The EEOC advised Centeno that he did not need to attend meetings without an interpreter. Centeno missed some meetings. The employer then told him he had to attend all meetings. Later, he was counseled in writing for his behavior in the lunch room. The EEOC later filed suit based on the employer’s failure to accommodate.
The 9th Circuit reversed the summary judgment in favor of the employer. The appellate court said at the least, there is a fact question whether this accommodation was "reasonable." The employer never claimed the obvious defense that the translator was too expensive. Translators in the San Antonio area charge anywhere from $75-100 per hour. The appellate court wrote:
“In summary, an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers, but an employer cannot satisfy its obligations under the ADA by providing an ineffective modification. Where, as here, there is a disputed issue of fact regarding whether the modifications the employer selected were effective, and where the trier of fact could reasonably conclude that the employer was aware or should have been aware that those modifications were not effective, summary judgment is not appropriate.
See decision. Frankly, I am surprised the lower court granted summary judgment. As Workplace Prof says, this is one the employer should settle. If the employer wishes to fire or discipline an employee for violating policy, the employer must make certain the employee understood that policy.