Courts have held that hiring a full-time American Sign Language (ASL) interpreter for a deaf employee may be a reasonable accommodation, even if doing so comes at great expense. In two cases decided in 2016, courts denied summary judgment motions by employers who argued that it would cause an undue hardship to require them to hire a full-time ASL interpreter for an employee or prospective employee who was deaf.
$120,000 expense is not an undue hardship. In Searls v. Johns Hopkins Hospital (JHH) (D. Maryland 1/21/16), the court not only denied the employer’s motion for summary judgment but actually granted the employee’s counter-motion. The employee was a deaf nurse who had attended the Johns Hopkins School of Nursing. As a nursing student, she had clinical placements at JHH during which the Nursing School provided her with a full-time interpreter. JHH offered her a full-time job position but then rescinded it when the nurse asked JHH to provide her with a full-time ASL interpreter at a cost of $120,000 per year.
JHH unsuccessfully argued that this accommodation would impose an undue hardship because JHH had no money in its budget to make reasonable accommodations, and, therefore, it would have to lay off two full-time nurses (whose starting salaries were $60,000) to fund the accommodation. The court said that the size of the employer’s budget for reasonable accommodations is “an irrelevant factor in assessing undue hardship,” and instead pointed to JHH’s operational budget of $1.7 billion, noting that a $120,000 accommodation would be only 0.007% of that budget.
No direct threat to safety posed by ASL interpreter with no nursing training. The court also rejected JHH’s argument that employing a deaf nurse would result in a direct threat to the health or safety of others. JHH had argued that some alarms were only auditory, and that it would have created a significant patient safety risk for a nurse to rely on an interpreter who had no nursing training. The court commented that the direct threat defense was based on “post-hoc rationalizations” that had not been raised at the time the offer was rescinded, and that JHH failed to show that it had engaged in an “individualized assessment of the safety risks” as required by the ADA.
A second case – no undue hardship. A second case is Smith v. Loudoun County Public Schools (E.D. Virginia 2/18/16). In Smith, the employee was a teacher of special education for the hearing impaired. Among other accommodations, the employee had requested that the school hire a daily ASL interpreter for her. The employer had denied this accommodation on the grounds that having on-call ASL interpreters available was a sufficient accommodation, and that it would impose an undue hardship to have to hire an interpreter on a daily basis. The court rejected both arguments, noting that on-call interpreters could not fulfill the need for daily, verbal communication because those interpreters had to be requested between 3 and 7 days in advance. As to undue hardship, the court rejected this argument because the school submitted no evidence, including that the school had not disclosed its operating budget. The court deemed the fact that the school had no budget allocated for this expense to be irrelevant, and quoted the Searls opinion above stating “even if it is correct that the salary of a full-time ASL interpreter would be twice the salary of a nurse, that in itself does not establish that an ASL interpreter would be an undue hardship.”
Lessons for employers? Employers need to be prepared to provide specific evidence relating to their claims of undue hardship. And, according to these courts, the amount budgeted by an employer to cover ADA accommodations is irrelevant. Rather, the courts looked to the comparison of the cost in relation to the size of the overall operational budget, which can make it difficult to prove undue hardship for a large organization.