Technology is becoming more and more ubiquitous in many workplaces. This can be a double-edged sword for employees with disabilities, including those with visual impairments. On one hand, some technologies make it easier for employees with disabilities to perform their jobs. But on the other hand, technologies that are not fully accessible to individuals with disabilities can create challenges and issues for both employees and employers.
We have seen an increasing number of cases alleging violations of the Americans with Disabilities Act (“ADA”) and similar laws after employers’ procurement of allegedly inaccessible technologies or employers’ alleged failure to provide reasonable accommodations to render allegedly inaccessible technology (whether new or already in place) fully accessible. Recently, the Fourth Circuit weighed in on employers’ accommodation obligations as to technology accessibility in the workplace.
On June 15, the Fourth Circuit reversed summary judgment on a disability discrimination claim under the Rehabilitation Act in Reyazuddin v. Montgomery County, Maryland, finding that there were genuine issues of material fact surrounding a blind employee’s claim that she was not reasonably accommodated and discriminated against, in part, because her public employer failed to procure and configure new call center software that would be fully compatible with screen reading technology used by the plaintiff. Although the claims in Reyazuddin were brought under Section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability in, among other things, programs that receive federal funding, the case is noteworthy for employers subject to Title I of the ADA because the same standards are applicable to both Section 504 and Title I.
The employee in the case, Yasmin Reyazuddin, worked at one of Montgomery County’s call centers as an Information and Referral Aide. Because Reyazuddin is blind, she used a screen reader (among other aids) to assist her in using a computer at work. About six years after she started working for the County, the County announced plans to consolidate its many call centers into a single, County-wide call center that residents could reach by dialing 3-1-1 (the project was referred to as “MC311”). As part of this project, the County procured new software for the call center, but as part of the procurement process did not inquire as to whether the call center software and all of its features were compatible with screen reading software. Additionally, the software procured by the County had two standard configuration modes—standard-interactivity mode, which was accessible to blind individuals because of its compatibility with screen reader software, and high-interactivity mode, which was not. The County chose to configure MC311 software in the inaccessible high-interactivity mode for all its workers. After the County had already chosen to implement high-interactivity mode, it inquired into how to make the software’s main features accessible and allegedly was told that making the MC311 software accessible in high-interactivity mode would cost around $200,000. The County declined to pursue that option.
The County originally planned to transfer Reyazuddin and her peers to the MC311 unit. Although her peers were transferred, Reyazuddin was not. Eventually Reyazuddin was told that she could not be transferred to MC311 because it would be too costly for the County to render the software accessible for her. Reyazuddin was eventually assigned to a new unit, where she had the same salary, grade, and benefits as before MC311’s launch, but she allegedly was given patchwork assignments, not full-time work. Approximately two years later, Reyazuddin applied for an open position at MC311, but was not selected.
Reyazuddin sued the County alleging that it violated Section 504 of the Rehabilitation Act by (1) failing to accommodate her disability in not making MC311’s software accessible, and (2) discriminating against her by not transferring her to MC311 along with her coworkers. She also alleged that the County violated Title II of the Americans with Disabilities Act (“ADA”) by not hiring her to fill the MC311 vacancy for which she applied. The district court granted the County’s motion for summary judgment, finding, among other things, that the County reasonably accommodated Reyazuddin by providing her with comparable employment, and that the County prevailed on its undue hardship defense—that the high costs of making the software accessible precluded its implementation of that accommodation—as a matter of law. On appeal, the Fourth Circuit upheld summary judgment on the Title II claim. However, it reversed summary judgment on Reyazuddin’s failure-to-accommodate and disparate treatment claims under the Rehabilitation Act.
First, the Fourth Circuit found that a genuine issue remained as to whether Reyazuddin could perform the essential job functions of the MC311 job with a reasonable accommodation. Reyazuddin had suggested several accommodations to allow her to perform her essential job functions, including reconfiguration of the County’s software to run concurrently in the accessible standard-interactivity mode and the high-interactivity mode or the development of a custom widget, which Reyazuddin asserted would render some of the features of the high-interactivity mode compatible with screen readers. The court found that expert evidence supported the reasonableness of these accommodations by showing that call centers in other states were made accessible by operating simultaneously in high- and standard-interactivity modes. Moreover, the court explained that nothing in the record appeared to require the MC311 software to be configured in the high-interactivity mode. And, lastly, the court also found that there was no evidence that Reyazuddin’s proposed accommodations would not allow her to perform the essential functions of her job.
Second, the Fourth Circuit found that there was a genuine issue of material fact as to whether the accommodation provided by the County was reasonable. The court reasoned that while an employer need not provide the exact accommodation that an employee requested, nonetheless “a reasonable accommodation should provide a meaningful equal employment opportunity,” meaning an opportunity to “attain the same level of performance as is available to nondisabled employees having similar skills and abilities.” Although Reyazuddin maintained her salary, pay grade, and benefits, the tasks she was assigned did not equal full-time work, and there was evidence that those assignments were actually considered a mere temporary fix by County personnel until a more permanent position was identified.
Third, the Fourth Circuit disagreed with the district court’s holding that the County prevailed on its defense that the high cost of reconfiguring the MC311 software was an “undue hardship.” The court noted that the cost to make the software accessible was not clear; expert testimony conflicted over the cost estimates of the proposed accommodation—ranging from around $100,000 on one hand, to surpassing $600,000 on the other. Moreover, the court explained that “while cost is important, it cannot be viewed in isolation,” and found it relevant that other call centers were able to accommodate blind employees. The court also rejected the County’s argument that it only had a meager budget set aside for reasonable accommodations as an inadequate theory to escape liability under the undue hardship defense.
Lastly, the court found that there was a genuine issue of material fact about whether the County discriminated against Reyazuddin by not transferring her to MC311. The Fourth Circuit noted that besides its undue hardship defense, the County had not “offered any other nondiscriminatory reason for not transferring Reyazuddin.” Because the court held that a genuine issue remained on the County’s undue hardship defense, the same issue precluded summary judgment for the County on the disparate treatment claim under the McDonnell Douglas Corp. v. Greenburden-shifting framework.
This case highlights some of the typical issues that we have seen with inaccessible technology claims. Even though the County was unsure of its staffing plans when it procured the call center software (i.e., it was not sure if it would transfer current employees including Reyazuddin), both the district court and Fourth Circuit noted the County’s failure to address this issue during the procurement process. Employers are well-advised to ensure that their procurement functions are attuned to issues relating to accessibility including in the procurement of software used by its employees.
Additionally, the question of whether the costs associated with providing a reasonable accommodation constitute an undue hardship are relative and highly dependent on the facts of each case. Here, both the district court and Fourth Circuit rejected the County’s contention that any accommodation that cost more than the modest line item in its budget for providing accommodations would constitute an undue hardship. Instead, the courts looked at the total costs of the project and the County’s entire budget to assess whether the costs associated with different accommodations was reasonable. This is something that large corporations in particular must consider in assessing the feasibility of technological accommodations for disabled employees.
Ultimately, employers that maintain effective compliance policies and implement best practices associated with identifying and assessing reasonable accommodations may be able to prevent litigation regarding technological accessibility.