Today, we start with what should be the obvious premise that not all disabilities can be accommodated to do all jobs and the Americans with Disabilities Act (“ADA”) does not require that. In order to prove a failure to accommodate claim, “a plaintiff must show that (1) she was disabled within the meaning of the [the ADA], (2) she was otherwise qualified for her position, with or without reasonable accommodation; (3) the defendant knew or had reason to know about her disability; (4) she requested an accommodation; and (5) the defendant failed to provide the necessary accommodation.” Kirilenko-Ison v. Board of Education of Danville Independent Schools, 974 F.3d 834, 669 (6th Cir. 2018)(citing Brumley v. United Parcel Serv., Inc., 909 F.3d 834, at 839 (6th Cir. 2018). And even then, an employer can avoid accommodating an employee’s disability by showing that the accommodations would have caused an undue hardship (and if that hardship is financial, that the employer sought outside funding, including offering the employee the option to pay for the accommodation). (Best Law Read: ADA: What’s An Essential Job Function?; ADA: Who is A Qualified Individual?; Can My Employer Refuse To Give Me A Reasonable Disability Accommodation? Best Lawyer Reply!). There is also the direct threat defense available to employers. (Best Law Read: What’s A Direct Threat Defense Under The ADA?).
If this seems like a complex process, it usually always is – which is why it is beyond critical to consult an experienced employment law attorney regarding your rights under the ADA. While our attorneys at Spitz, The Employee’s Law Firm continue to have success in fighting discriminatory bosses, managers, and supervisors, one of the most important jobs that we have is to be completely honest with potential clients – and that means telling them the truth when a claim likely will not succeed. Speaking of which …
I have a severe hearing disability. Can I be refused a job to drive a train or a bus?
Best Disability Discrimination Attorney Answer: According to New York City Transit Authority, the Manhattan and Bronx Surface Transit Authority, the Metropolitan Transit Authority, and the United States District Court for the Southern District of New York, no. Even if you’re otherwise entirely qualified for the position, the ability to “understand [and] be understood in spoken English” is an essential job function of safely being train and bus operators and track workers.
Today, we look at the new case of Kenneth Frilando v. New York City Transit Authority, Manhattan and Bronx Subsurface Transit Authority, and Metropolitan Transit Authority, No. 21-169-CV, 2022 WL 3569551 (2d Cir. Aug. 19, 2022) out of the United States Court of Appeals for the Second Circuit. Mr. Frilando applied for three separate positions with the various Transit Authorities named in the case; he wanted to become a train or bus operator or a track worker. He gave notice of his “profoundly deaf” status (the Court’s words, not your author’s) at the time of his applications and his primary language is American Sign language (“ASL”).
There was no question that, because Mr. Frilando is hearing-impaired, he is disabled and that the Transit Authorities were aware of his disability. (Best Law Read: Does The ADA Protect Transitory Conditions Like COVID Or A Broken Leg?; What Is The Interactive Process For Disabled Employees?; and Interactive Process: It Takes Two To Tango). As part of his applications for the positions, he requested reasonable accommodations to have the pre-employment exams offered in ASL. The defendants/Transit Authorities offered to provide ASL interpretations for the exams’ instructions, but not for the exams’ questions and answers. Mr. Frilando then sued the Transit Authorities asserting a claim of failure to accommodate.
After a bench trial, the Trial Court held that Mr. Frilando was not “otherwise qualified” for any of the positions to which he applied as “the ability to communicate in English and the ability to hear sounds were essential functions of the three positions.” Frilando, at *2. Courts generally will not decide what a job’s essential job functions are, so “‘a court must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position’ and keep in mind that ‘[a] reasonable accommodation can never involve the elimination of an essential function of a job.’” Frilando at *1.
Appellate Courts (such as the one that ruled on this case’s appeal) give “‘considerable deference to a district court’s findings of fact, which we will reverse only for clear error.’ Freedom Holdings, Inc. v. Cuomo, 624 F.3d 38, 49 (2d Cir. 2010). ‘We review [a district court’s] conclusions of law, or mixed fact and law, de novo.’ Id.” Frilando at *1. De novo review is when an Appellate Court reviews the findings of a case as new (a nearly direct translation of the Latin). The Appellate Court will generally keep the Trial Court’s opinion on the actual events of the case (or the jury’s, if there is one), but will fully review the legal findings as new.
Because the Trial Court held that the ability to hear, speak, and understand English were essential job functions for all of the roles to which Mr. Frilando applied, the Appellate Court did not question that result. Thus, cause because Mr. Frilando was hearing impaired, he was not qualified to work as a train or bus operator or a track worker. His other qualifications were not questioned at all, only his ability to hear, understand, and speak English. Because he could not, he was not otherwise qualified for the positions to which he applied – and thus his failure to accommodate claim failed.
But what if hearing and speaking English is only a “marginal” or small piece of the position? Can I succeed on a failure to accommodate claim then?
Best Reasonable Accommodation Attorney Answer: Maybe. Each situation is going to be different.
In his appeal, Mr. Frilando also argued that he could perform other tasks as a track worker for the Transit Authorities as the track workers did various administrative functions too. Mr. Frilando saw that, “‘approximately 9 employees … perform[ed] various administrative functions in various office settings, transportation operations[,] and in the union offices’).” Frilando at *2. He thus argued that, since these track workers were also working on tasks that he could perform without the ability to hear and speak English, he could focus on those tasks instead.
Again though, the Appellate Court relied on the Trial Court’s finding of fact: that hearing, understanding, and being understood in spoken English is an essential job function for a track worker. “We do not think that this is enough to overturn the District Court’s conclusions about the essential functions of the track worker position, especially in light of overwhelming evidence in the record that the capacity to communicate in English and hear sounds are essential, and not merely marginal, abilities for each of the jobs in question.” Id. Thus, despite that Mr. Frilando could perform the other tasks for track worker jobs that did not require hearing and speaking English, he still was not otherwise qualified for the role.
But aren’t there other reasonable accommodations available? What if I can do other jobs instead, with or without a reasonable accommodation?
Best Reasonable Accommodation Attorney Answer: Employers are not required to offer a different position as a reasonable accommodation. Employers can offer other positions as reasonable accommodations, but as noted above, a reasonable accommodation can never involve elimination of a reasonable job function.
I think my employer could have provided me reasonable accommodations, but fired me instead. Do I have a case?
Best Employment Lawyer Answer: Give a call to the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
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