Today’s blog entry deals with two decisions from the U.S. Court of Appeals for the Second Circuit dealing with essentially the same fact pattern. One decision, Williams v. MTA Bus Company, here, is a published decision decided August 12, 2022, while the other decision, Frilando v. New York City Transit Authority is a summary order decided on August 19, 2022, here. Both decisions have the potential to set back the ability of Deaf, deaf, and HOH individuals to be employed. I don’t see why the decision don’t have the ability to set back people with other kinds of disabilities from being employed as well. The facts are substantially similar. Both cases involve culturally deaf individuals seeking employment. Both cases involve exams needing to be taken in order to see if they were qualified for that job. Both cases involve a refusal to have an interpreter to interpret the examination and its instructions. The panel for Williams was Cabranes, Raggi, and Carney. The panel for Frilando was Cabranes, Lynch, and Chin. As usual the blog entry is divided into categories and they are: court’s reasoning in Williams; court’s reasoning in Frilando; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.



Court’s Reasoning in Williams


  1. Only qualified individuals can establish a disability discrimination claim.
  2. The term “qualified individual,” appears in the statutory section, 42 U.S.C. §12112(a), talking about how a person cannot be discriminated against on the basis of disability with respect to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Through the use of the term “qualified individual,” means that a person has to be able to perform the essential functions of the employment position.
  3. 42 U.S.C. §12112(b) references 42 U.S.C. §12112(a). Therefore, the term “qualified,” is equally applicable in that section as well.
  4. Doesn’t make sense that Congress would intend to permit individuals who are not qualified for their desired employment positions to maintain action for some types of employment related discrimination but not for others. Therefore, Congress intended the “qualified individual,” requirement to apply to all forms of employment discrimination under 42 U.S.C. §12112.
  5. Reading 42 U.S.C. §12112 to maintain the “qualified individual,” requirement is consistent with both the ADA and the Rehabilitation Act taken as a whole.
  6. 42 U.S.C. §§12111, 12112 work together. So, considering the interactive relationship between those two provisions, it would be nonsensical to disregard the term “qualified individual,” when reading 42 U.S.C. §12112(b)’s subparts rather than reading it all together so that only “qualified individuals,” may bring claims based upon discriminatory acts enumerated in 42 U.S.C. §12112.
  7. 504 of the Rehabilitation Act, 29 U.S.C. §794, echoes that only an “otherwise qualified individual,” can sustain a discrimination claim under that section.
  8. Since the statutory sections are clear, the EEOC guidance does not come into play. However, even if it were to come into play you still get to the same endpoint. The EEOC guidance said that an employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for the job. Accordingly, it is fair to read the guidance to say that before an employee can prevail on its failure to provide accommodations during the application process, the plaintiff must show that he was qualified for the employment position at issue.
  9. The portion of the EEOC guidance does not address the employer’s obligation regarding an applicant who cannot perform the essential functions of the position regardless of any on-the-job accommodations, and therefore is another reason why the EEOC guidance is of little assistance.
  10. Taking a test to see if they are qualified for certain jobs is not an employment position and therefore the test-taker is not entitled to accommodations in the test taking process if they are not qualified for the employment position they are seeking.
  11. An employer is perfectly within its rights to mandate that the applicant evaluate his qualifications for the job before seeking accommodation for exams. An employer does not have to allow a person to take exams for job that they are not qualified for. In other words, an applicant cannot sue successfully a potential employer under 42 U.S.C. §12112 when the individual is facially not qualified for the position sought at the time of the preemployment test.
  12. Williams simply did not have the education or experience requirements necessary for the jobs that he wanted to take the exams for.
  13. In the Second Circuit, an employer’s failure to comply with the interactive process requirement is not an independent cause of action under the ADA.




Court’s Reasoning in Frilando


  1. Plaintiff applied for the jobs of train operator, track worker and bus operator.
  2. Defendants offered to provide ASL interpretation for the exam instructions but refused to provide interpretation for the exam questions and answers.
  3. The term “qualified,” applies not just to current employees but to job applicants as well.
  4. When assessing whether a person is otherwise qualified for a job, a court must give considerable deference to an employer’s judgment regarding what functions are essential for a particular position.
  5. In a four day bench trial, the District Court found that the ability to communicate in English and the ability to hear sounds were essential functions of all three positions. Plaintiff was not qualified for any of the positions because he could not be understood in spoken English and also did not understand spoken English. He also did not have the minimum hearing standard for any position.
  6. Test taking is not an employment position. Therefore, plaintiff is out of luck for a failure to accommodate claim with respect to taking the test necessary to qualify for the various jobs.





  1. I often say in my trainings that an employer makes a big mistake by focusing on major life activities as an essential function of the job. These two cases say that the employer may get away with taking that considerable risk if it chooses to use a major life activity as an essential function of the job. That said, taking this approach is lousy preventive law. An employer will go much further in preventing litigation and successfully defending lawsuits when there is litigation, if the essential functions of the job do not include a major life activity.
  2. On the plaintiff side, the argument to make is that hearing is not the essential function of the job but being able to communicate is. That is an argument the plaintiff successfully made in the case we discussed in the blog entry involving Johns Hopkins, here. The Johns Hopkins case is also a cautionary tale for an employer insisting on a major life activity being an essential function of the job.
  3. Neither of the decisions are published (one is not published and the other is a summary order).
  4. In footnote 16 of the Williams decision, the court says that the employer by not evaluating the plaintiff’s qualifications before refusing to provide him with an ASL interpreter for the exam, ran the risk of denying a reasonable accommodation to a qualified individual that would have rendered the company liable for disability discrimination. Also, courts should not bless off blanket denials of accommodation by accepting specious explanations why applicants with disabilities may ultimately not be qualified for a position.
  5. Both of these cases give employers a tool now to prevent Deaf individuals in particular from even getting considered for a particular job because accommodations do not have to be offered for any testing for those jobs unless they can do the essential functions of the job first.
  6. The Second Circuit decisions play down considerably the obligation of the employer to provide reasonable accommodations. Remember, reasonable accommodations can either be in the title I context a logistical or financial undue hardship. Per 42 U.S.C. §12111(10)(B), financial undue hardship looks to the entire operations of the entity, while logistical undue hardship looks to whether essentially the nature of the business is fundamentally altered.
  7. A sign language interpreter does not do the job for a Deaf individual, rather they are just enabling communication. That said, I could see logistical undue hardship questions and possibly financial undue hardship questions as well arising depending upon the situation.
  8. Before employers just start adopting including major life activities as essential functions, mandatory reading is this blog entry. Plaintiff lawyers need to make that blog entry mandatory reading as well after these two cases.
  9. Deaf individuals frequently do not read above a fourth grade reading level because ASL is a completely different kind of language than English. It is of course a visual language and its structure is entirely different, based on French. Therefore, a Deaf person is equally unlikely to understand the exam questions as they are the instructions themselves. As such, granting ASL for instructions but not for exam questions means it is still the disability being evaluated rather than the person’s abilities.
  10. A qualified interpreter for the Deaf is strictly a communication vehicle and is not offering their own view on anything.
  11. Remember whether a person is qualified for a particular position depends upon whether they can do the essential functions of the job WITH or without reasonable accommodations.
  12. Undue hardship is an affirmative defense, though the burden of proof can get complicated with respect to whether a person is qualified or not per the ADA.
  13. Depending upon the circuit, failure to engage in the interactive process may or may not be a separate cause of action. That said, the trend is certainly in favor of a failure to accommodate being a separate cause of action.
  14. I don’t see why these decisions necessarily get limited to hearing. Why not walking or seeing, smelling, etc.?
  15. It will be interesting to see both how other circuits deal with this issue as well as how the EEOC reacts to these decisions going forward.