Just over a month ago, I blogged on the issue of whether title II of the ADA applies to employment . I followed up in a comment to that blog entry discussing whether § 504 applies to employment. On June 15, 2015, the Fourth Circuit in a published decision weighed in.
In Reyazzudin v. Montgomery County, Maryland, the Fourth Circuit was faced with the question whether title II of the ADA applies to employment. They were also faced with the question of whether § 504 applies to employment. Finally, they were faced with the question of whether it was proper for the District Court to grant summary judgment on the grounds that accommodating the person with a disability would constitute an undue burden. As is my usual practice, the blog entry is divided into categories: facts; court’s reasoning on § 504 applicability to employment; court’s reasoning on whether title II of the ADA applies to employment; court’s reasoning on whether a genuine issue of material fact existed with respect to an undue burden; and takeaways. The reader is free to concentrate on any or all of the categories.
Court’s Reasoning on § 504 Applicability to Employment
Since § 504 applies to all operations of a governmental entity, that by its terms includes employment. Also, the court specifically references the provisions of the Rehabilitation Act that relate back to title I of the ADA. Interestingly, the decision does not reference the United States Supreme Court opinion mentioned in my comment to my first blog entry on this subject. It also does not address the possible alternative meaning of the reference to title I, which I discussed in III(2) in the blog entry that I posted a month ago.
Court’s Reasoning on Whether Title II of the ADA Applies to Employment
The Fourth Circuit, after noting a split in the circuits (which I noted in my prior blog entry), adopts the majority view that it unambiguously does not. They reasoned as followed:
1. Services, programs, or activities in title II of the ADA most naturally refers to outputs provided to the public rather than its inputs, such as employees.
2. Title II of the ADA, unlike § 504 of the Rehabilitation Act, does not contain a special definition for “services, programs, or activity.”
3. The definition of a qualified individual under title II clearly is not referencing employment especially when compared to the definition of qualified under title I of the ADA.
4. Interpreting title II so as to not cover employment gives effect to Congress’s decision to define the term qualified individual differently in the two titles.
5. Each title of the ADA has its own heading: title I for employment; title II for public services; and title III for public accommodations.
6. Reading title II to cover employment diminishes, duplicates, and even render superfluous title I of the ADA.
7. Congress delegated different agencies to enforce each title of the ADA (for example, EEOC for title I and DOJ for titles two and three).
8. Congress expressly cross-referenced title I but not title II when it came to mandating the standards applicable to employment discrimination claims brought under § 504 of the Rehabilitation Act (but see my main blog entry on this).
9. The 11th Circuit decision reached the opposite view through a cursory recitation of part of title II’s text, no analysis of the structure of the ADA, and heavy reliance on legislative history and the Atty. Gen.’s regulations. However, since title II unambiguously does not apply to employment, there is no need to get into legislative history or regulations.
Court’s Reasoning on Whether a Genuine Issue of Material Fact Existed with Respect to an Undue Burden
With respect to whether it was proper for the District Court to grant summary judgment on the issue of undue burden, the court held that a genuine issue of material fact existed and summary judgment was not proper. There are lots of good tidbits here, including:
1. At the summary judgment stage, the employee only has to show that accommodation seems reasonable on its face. Once that is done, the employer then must show special circumstances demonstrating undue hardship.
2. A genuine issue of material fact existed with respect to whether the plaintiff could perform her job with or without reasonable accommodations. She in fact suggested two different options: configure the software to run concurrently in the accessible standard interactivity mode; or create a custom workaround for the toolbar.
3. Plaintiff’s expert worked with call centers in California and Pennsylvania that operated in both high interactivity and standard interactivity mode. She also worked with a third CallCenter in Illinois where all the employees, including one blind employee, operated in standard-interactivity mode. A fourth CallCenter client was accessible through a custom solution.
4. It cannot be said that operating in high-interactivity mode would be an essential job function since other call centers were able to operate without it.
5. The accommodation given to the plaintiff of keeping her salary and benefits the same but giving her make work raise a genuine issue of material fact as to whether she was given a meaningful equal employment opportunity to attain the same level of performance available to employees without disabilities having similar skills and abilities.
6. The District Court’s analysis regarding whether an undue burden existed, and properly waived conflicting evidence, did not view the evidence in the light most favorable to the plaintiff, and overemphasized one factor of whether an undue burden exist while overlooking the others.
7. In this particular situation, two people both qualifying as experts have different views as to the costs of the proposed accommodations thereby setting up a battle of the experts. Further, at the summary judgment stage, it is not the judge’s function to weigh the evidence and determine the truth of the matter but only to determine whether a genuine issue exist for trial. Also, the District Court did not figure in the number of employees of the software company, the people the county paid to manage the system in the amount they paid, or the considerable savings the county realized from creating a centralized Call Center.
8. The District Court made a mistake in crediting County’s arguments about how the proposed accommodation could negatively affect the overall operation of the CallCenter because in a summary judgment motion the evidence should be viewed in light most favorable to the plaintiff as the nonmoving party and not to the moving party. Here, the plaintiff presented evidence of other call centers operating simultaneously in both modes as well as her expert’s opinion that the proposed solution for accessibility would allow her to work at the CallCenter without altering the experience of those with sight.
9. The District Court was misplaced in relying on the county’s budgeting to determine whether the accommodations were reasonable. Such an approach effectively cedes the legal determination to the employer allegedly failing to accommodate the employee with a disability. To hold otherwise, would mean that an employer could budget zero dollars for reasonable accommodations and would always avoid liability on the grounds of undue burden. In this situation, the county’s overall budget was $3.73 billion and the CallCenter’s operating budget was 4 million and those were the relevant factors to consider not the line item budget for reasonable accommodations.
10. Cost of the reasonable accommodation cannot be viewed in isolation since it is the relative cost, along with the other factors that matter. The court noted that other call centers were able to accommodate blind employees.
1. I found it interesting that the court said that § 504 applies to employment, but did not cite to the Supreme Court opinion that held as much nor did they explore the possible alternative meaning of the reference to title I of the ADA, which I mentioned above.
2. This is another court that is pushing back on the summary judgment pendulum insisting that lower court judges look for genuine issues of material fact and not act as the trier of fact.
3. You do have a circuit split on whether title II of the ADA applies to employment. That said, the reasoning of the majority of courts saying that it does not presents, to my mind, a compelling set of arguments. It would be interesting to see if the 11th circuit would not overrule its prior decision as it is the only circuit to the contrary. If the question were to go to the Supremes before the 11th circuit overruled its prior decision, assuming it would, it is hard for me to believe that the Supreme Court would not go with the majority opinion on this issue.
4. Just because an accommodation may cost big bucks, does not mean that the employer is off the hook. Further, the undue financial burden defense go to the entire budget and not to a particular line item. That is consistent with the regulations but Justice Ginsburg’s opinion in Olmstead, in a section of the opinion which did not have a majority to it, has some language that is iffy on that point.
5. It is much cheaper to make sure things are accessible before you buy the product think to do it after the product has been bought. Also, go with universal design whenever possible. That is, in this case, everyone could be happy with standard-interactivity mode so why not just set it up that way.
6. If you are going to transfer an employee to another position make sure it is a position that gives the employee and meaningful equal employment opportunity to attain the same level performance available to employees without disabilities having similar skills and abilities and not just a make work job.
7. Whether something constitutes an undue burden, mean considering several factors and be sure to consider all of them. This is an important point because many an opinion tend to just rely on whether it is in the employer’s job description. There are more factors than that involved and they need to be considered.
9. One is left wondering why a title I claim was not filed. One could only surmise that it is perhaps due to not filing with the EEOC within the statutory period (180 days or double that if a state agency is an equivalent). True, this case holds that § 504 applies to employment, but even so, the plaintiff is then faced with when it comes to causation showing sole cause rather than by reason of.