Wednesday, February 14, 2018

Cadoret v. Sikorsky Aircraft Corp.: Is hiring a full-time sign language interpreter a REASONABLE accommodation?

In Cadoret v. Sikorsky Aircraft Corp., No. 3:15cv1377(JBA), District Court Judge Janet Arterton rejected the defendant's contention that James Cadoret's request for a sign language interpreter was unreasonable as a matter of law. Cadoret, a deaf individual whose primary language is American Sign Language, had requested that the defendant provide a sign language interpreter so that he would have "access to equal benefits and privileges of his employment," which included being able to participate in meetings and training and to converse with supervisors. The defendant contended that Cadoret's request was per se unreasonable because it would require the hiring of a full-time employee to accommodate Cadoret. Disagreeing, Judge Arterton concluded that even assuming a reasonable accommodation would require the hiring of a full-time interpreter, which Cadoret disputed, there were no "extraordinary circumstances" in the record so as to render provision of an interpreter unreasonable.

Before Arterton's decision, a few other courts had likewise concluded that an employer might be required to provide a full-time sign language interpreter as a reasonable accommodation, including the federal district court in Maryland (Searls v. Johns Hopkins) and the Ninth Circuit (EEOC v. UPS Supply Chain Solutions). Notably, in upholding a full-time sign language interpreter as a reasonable accommodation, courts have largely overlooked whether such an accommodation would in fact ever be reasonable.

In U.S. Airways v. Barnett, 535 U.S. 391 (2002), the Supreme Court rejected the contention that to be reasonable, an accommodation need only be effective. Accordingly, the Court held that reassigning an employee to a vacant position, even if it would be an effective accommodation, would generally not be a reasonable accommodation where the reassignment would violate collectively bargained seniority rights.

In other cases, some lower courts have evaluated the reasonableness of an accommodation by looking, in part, at the benefits of an accommodation relative to its costs. For example, in Borkowski v. Valley Central School, No. 92-7254 (2d Cir. 1994), the court stated:
"Reasonable" is a relational term:  it evaluates the desirability of a particular accommodation according to the consequences that the accommodation will produce. This requires an inquiry not only into the benefits of the accommodation but into its costs as well. We would not, for example, require an employer to make a multi-million dollar modification for the benefit of a single individual with a disability, even if the proposed modification would allow that individual to perform the essential functions of a job that she sought.  In spite of its effectiveness, the proposed modification would be unreasonable because of its excessive costs.  In short, an accommodation is reasonable only if its costs are not clearly disproportionate to the benefits that it will produce.
Even if this kind of cost-benefit analysis is not integral to evaluating reasonableness, it is clear that by only requiring an employer to provide a reasonable accommodation, Congress put some limits on the kinds of accommodations that an employer can be required to provide. As a result, although an employer may be able to easily afford a particular kind of accommodation, that accommodation may still fall outside the bounds of what is legally required. 

If an employer is required to hire a full-time employee to accommodate someone else, then the employer is essentially having to hire two individuals when one would usually do. Is that a reasonable accommodation? Courts need to grapple with that question.

Another interesting aspect of cases involving requests for full-time interpreters is that they can be based to some extent on a deaf employee's limited written English skills. Written communications can be a reasonable means of accommodating deaf workers in many circumstances, and in the EEOC's fact sheet about deafness and hearing impairments, the agency discusses sign language interpreters as an accommodation to facilitate oral communication, not as an accommodation to address limited English ability. In some cases, however, an individual's limited written English skills will mean that written English communications will not be an effective accommodation, so the only accommodation may be to provide a sign language interpreter for a variety of communications, which may even include the translation of some employer materials from written English to American Sign Language.

A lurking issue here, which I've wondered about but haven't seen addressed in cases, is whether accommodating limited English skills falls under the Americans with Disabilities Act. Under the ADA, an employer is required to accommodate an individual's mental or physical limitations, and typically, there is a close connection between the limitation and the need for the accommodation. If an individual has a mental impairment that limits the ability to learn written English, then the person's limited written English skills are caused by the impairment. But if someone has weak written English skills because English is not his first language, then the connection to disability seems more tenuous. Some experts appear to believe that written English can be more difficult to learn for someone who is deaf, and particularly so if the individual was born that way, than for a hearing individual. I've seen others, however, suggesting that someone going from ASL to written English is not that different from someone going from Chinese or Russian to English.  If a deaf individual can learn written English as easily as a native Chinese or Russian speaker, then is accommodating poor English skills still akin to accommodating deafness? If not, then how difficult must it be for a deaf individual to learn written English in order for an employer to be required to provide an accommodation under the ADA?


This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.