Second Circuit Holds: You Can’t Always Get What You Want – As Long Your Employer Gives You What You Need (An Effective Accommodation)
On May 21, 2015, the United States Court of Appeals for the Second Circuit, in Noll v. International Business Machines Corporation, Case No. 13-4096 (May 21, 2015), affirmed a decision by the Southern District of New York which granted the defendant-employer summary judgment on the plaintiff-employee’s claims under the Americans with Disabilities Act (“ADA”) and the New York State Human Rights Law (“NYSHRL”). Specifically, the Second Circuit held that: (i) the employer reasonably accommodated plaintiff by providing American Sign Language (“ASL”) interpreters capable of translating intranet files; and (ii) in light of this accommodation, plaintiff had no claim under the ADA or the NYSHRL that the employer failed to engage in the interactive process.
Plaintiff, a software engineer, sued for disability discrimination under the ADA and NYSHRL, alleging that his employer did not reasonably accommodate his hearing disability because it failed to ensure that all audio and/or video files stored on its corporate intranet were posted with captions or with transcripts. In seeking summary judgment, the employer argued that it provided plaintiff with a reasonable and effective accommodation – providing plaintiff with access to ASL interpreters.
In affirming the entry of summary judgment, the Second Circuit rejected plaintiff’s argument that ASL interpreters were “not as effective as captioning” because, in determining whether a reasonable accommodation was made, “the law requires an effective accommodation, not the one that is most effective for each employee.” In light of this standard, by providing qualified ASL interpreters for the plaintiff (interpreters who translated items fully and correctly), the employer reasonably accommodated plaintiff’s disability. The Second Circuit also held that while the need to split visual focus between the ASL interpreter and the video “was a disadvantage that likely tired or annoyed [plaintiff]… this disadvantage does not render interpretive services ineffective” because it can be “expected that many accommodations of deafness—ASL interpretive services as well as captioning—will tax visual attention to some degree.” Given this, the Court held that an “accommodation for deafness therefore cannot be rendered ineffective by the need to divide visual attention, without more.”
In addition, the Second Circuit held that the employer’s decision not to initiate an “informal, interactive process” with plaintiff to assess whether his disability can be reasonably accommodated, did not give rise to an independent cause of action because the “ADA imposes no liability for an employer’s failure to explore alternative accommodations when the accommodations provided to the employee were ‘plainly reasonable.’” Since the employer provided a reasonable accommodation to plaintiff, the employer’s “failure to engage in an interactive process—even if supported by the record—did not give rise to a discrimination claim.”
In light of the Noll decision, employers should be reminded that the ADA and NYSHRL do not require employers to provide employees with their preferred or even the most effective accommodation. Rather, the employer’s obligation under the ADA and NYSHRL is to provide “an effective accommodation” for an employee’s disability.
Nirav Bhatt, a law clerk, assisted in the preparation of this blog.