Thursday, April 18, 2019

Does the cost of a sign language interpreter constitute an undue hardship under the ADA?

First, check out this great article: How Reasonable is That Accommodation? Case Studies Evaluating the Reasonableness of Workplace Accommodations Under the Americans With Disabilities Act. The article provides three "case studies" for reasonable accommodations under the ADA, including Searls v. Johns Hopkins Hosp.

In Searls, a deaf nurse sought a reasonable accommodation under the ADA - an American Sign Language (ASL) interpreter. The nurse's salary was about $60,000/year, and the ASL interpreter would have cost up to $120,000/year. The hospital argued that it would effectively have to layoff two other nurses to account for the ASL interpreter in the budget. That sounds like a pretty good setup for an undue hardship defense, huh?

Not so fast! The Court declined to enter summary judgment for the employer, mostly because the $120,000 cost was only 0.007% of the hospital's budget. And, that right there is one of the difficulties in analyzing an employer's duty to accommodate employees with disabilities under the ADA.

You really have to examine circumstances. Did Johns Hopkins fail to get summary judgment on a $120,000 cost that was twice the employee's salary? Yeah. Does that mean your business has to provide such an accommodation? Well . . . wait for it . . . classic attorney punchline coming . . . that depends.

[Loud groaning and booing from the audience]. "Can you at least tell us what it depends on?" Fine. Per the ADA, here is a nonexhaustive (I know, I know - yes, there might be even more factors that aren't even listed) list:
(i) the nature and cost of the accommodation needed under this chapter; 
(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; 
(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and 
(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 
42 U.S.C. § 12111(10)(B).

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