The Second Circuit recently affirmed the Southern District of New York’s grant of summary judgment to technology giant IBM, finding that the provision of real-time, on-call American Sign Language interpreters and/or written transcripts to a deaf software engineer was an “effective” accommodation under the Americans with Disabilities Act (“ADA”).
In Noll v. Int’l Bus. Machines Corp., 787 F.3d 89 (2d Cir. 2015), the court rejected the plaintiff’s arguments that (1) IBM must provide closed captioning for all video files uploaded to IBM’s intranet (which contains over 46,000 files) and (2) IBM failed to engage in the interactive process even after it provided the accommodation through interpreters and transcripts.
The court’s opinion offers a strong defense to employers who provide effective accommodations and clarified that those employers cannot be held liable for failing to engage in the “interactive process” when the employee is already effectively accommodated. Further, the court offered some specific insight in the limitations of accommodating deaf persons.
The court held that reasonable accommodation may take many forms, but “[a]ll that is required is effectiveness.” Employers are not required to provide a perfect accommodation or the employee’s preferred form of accommodation, but an employee’s preference should be given “primary consideration.” Employers may consider the expense and the difficulty of procuring any form of accommodation specifically requested by an employee.
With regard to deafness, the court recognized that because deaf persons necessarily receive auditory information from other senses (principally sight), IBM’s accommodation through live interpreter or written transcript was not ineffective, even if the plaintiff found them tiring and annoying. This reinforces the proposition that the employer’s duty to provide an effective accommodation “does not require the perfect elimination of all disadvantage that may flow from an employee’s disability.”
Finally, the court concluded that the ADA imposes no liability for an employer’s failure to explore alternative accommodations when the accommodations provided to the employee were plainly reasonable. Employers are not required to engage or re-engage in the interactive process when the end it is designed to serve—a reasonable, effective accommodation for the employee—has already been achieved.
While the Noll decision undoubtedly provides a strong defense for employers who provide “effective” accommodation to employees with disabilities, an employee’s preference should still be given serious consideration during any initial interactive process.
Although IBM won on summary judgment, other employers should look to avoid litigation altogether—and the legal fees involved—by re-engaging in the interactive process whenever an employee is reasonably dissatisfied with their existing accommodation. The key is good faith participation in the interactive process.