How Far Must A Hospital Go to “Reasonably” Accommodate a Deaf Health Care Professional Under the ADA? A Federal Judge in Maryland Gives a Surprising Answer
On January 21, 2016, Judge Catherine Blake of the US District Court for the District of Maryland (Maryland’s federal trial court) handed down a somewhat surprising decision in Searls v. Johns Hopkins Hospital, a case involving a deaf nurse who was offered a job by Johns Hopkins Hospital (JHH) in Baltimore, only to have her offer rescinded after JHH decided it would be too expensive to provide her with the American Sign Language (ASL) interpreter she requested as an accommodation. JHH had sought to dismiss the case on summary judgment (which is a way that litigants can dispose of a case without going to trial if there are no genuine disputes of material fact, and all that is needed to decide the case is an interpretation of law from a judge). Instead, Judge Blake granted summary judgement to the plaintiff, Lauren Searls, finding that she had made out a case of disabilities discrimination against JHH under Title I of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973. Judge Blake left the issue of damages to be resolved at trial.
Nurse Searls is a deaf 2012 graduate of the Johns Hopkins University School of Nursing. She can read lips but understands better through ASL. When communicating with hearing individuals, she voices for herself. As a nursing student, Searls successfully completed two clinical rotations at JHH in its Halsted 8 unit. During her clinical placements at JHH, the School of Nursing provided her a full-time ASL interpreter.
At the end of her final rotation, she received a very positive faculty summary of her clinical performance. One faculty member wrote that Searls "[w]orked well with others on the team and communicated appropriately and with empathy with the patients and their families." She met all of the course objectives, frequently at a high level.
Just a few days before Searls' graduation from the School of Nursing in July of 2012, JHH’s Nurse Manager sent Searls an email giving her advance notice that two openings for Nurse Clinicians in Halsted 8 were about to be posted. The Nurse Manager encouraged Searls to apply. Not surprisingly, one of the essential job functions listed in the position description was the ability to "liste[n] actively to opinions, ideas and feelings expressed by others and respon[d] in a courteous and tactful manner." Searls interviewed for the position, and she was hired the very next day.
After Searls received the employment offer, she told a staff member from JHH’s Department of Occupational Health that she would require full-time ASL interpretation as an accommodation. This prompted JHH’s ADA/Accessibility Consultant to investigate the cost of providing interpreters to Searls. The consultant determined that the average annual salary of an ASL interpreter proficient in medical terminology would be between $40,000 and $60,000. The consultant also determined that Searls would require a team of two interpreters with her at all times, at a total annual cost of $240,000. (JHH failed to convince Judge Blake that there was a legitimate factual basis for these conclusions).
Halsted 8, which is part of JHH's Department of Medicine, had an operating budget of $3.4 million in 2012. The budget of the Department of Medicine was $88 million that year, and JHH had an overall operating budget of $1.7 billion in 2012. The Nurse Manager who had hired Searls assumed (again with no apparent factual basis) that the Halsted 8 unit would need to absorb the entire expense of the interpreters, with no cost sharing from the larger institution. She flatly concluded that Halsted 8 could not afford to hire Searls, even though she believed that Searls was “bright and would [have been] a good hire other than [for her] hearing issue.” During the time Searls' accommodation request was evaluated, no one asked Searls how she would work with an interpreter or proposed any alternative accommodation.
Searls subsequently clarified that she was only seeking one full-time ASL interpreter. That didn’t change JHH’s decision to rescind her offer of employment several weeks after it had hired her. In its rescission letter, JHH stated that it engaged in “several interactive consultations” with her, but could not provide her requested accommodation because of “its effect on the resources and operation of the department.”
After several months of searching for a new job, Searls began working as a nurse at the University of Rochester Medical Center's Strong Memorial Hospital (Strong). After Strong offered her the job, Searls requested a full-time ASL interpreter. Strong agreed. Searls' supervisor at Strong testified that Searls' deafness and use of an interpreter had never negatively affected patient care, her response to alarms, or her participation in codes—all things that JHH assumed would be a problem for Searls even with the assistance of an interpreter.
Title I of the ADA makes it illegal for an employer to "discriminate against a qualified individual on the basis of disability...." To establish a prima facie case, a plaintiff must show that (1) he or she is an individual with a disability within the meaning of the ADA; (2) the employer had notice of the disability; (3) he or she could perform the essential functions of his or her job with a reasonable accommodation; and (4) the employer refused to make such reasonable accommodation.
Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." Employment discrimination claims brought under Section 504 are evaluated using the same standards as those applied under Title I of the ADA. Health care facilities, which usually receive federal financial assistance through Medicare, are covered by Section 504.
An employer may avoid liability under the ADA and Section 504 if it can show as a matter of law that the proposed accommodation will cause “undue hardship” under the relevant circumstances, or that the employee constitutes a "direct threat" to the health or safety of others that cannot be eliminated or acceptably reduced by a reasonable accommodation.
Why Hopkins Lost
A “Reasonable” Request for Accommodation
In her opinion, Judge Blake noted that, in defining the term "reasonable accommodation" under the ADA, Congress expressly included "the provision of qualified readers or interpreters" as an illustration of accommodations that may be reasonable, depending on the prevailing circumstances. The reasonableness of a requested accommodation of a disability depends on whether it enables the employee to perform the essential functions of the job. An essential job function is one that bears a "more than a marginal relationship” to the job. A reasonable accommodation does not require an employer to reallocate essential job functions, to assign permanent light duty to an employee with a disability, or to hire an additional person to perform an essential function of that employee’s position. (For example, reducing a school counselor's caseload would not be a reasonable accommodation if it would shift her duties to other counselors and increase their workload).
Searls had provided evidence in the form of expert testimony that employers often provide interpreters as a reasonable accommodation. Searls also showed that she had worked effectively with interpreters while she was completing her clinical rotation at Halsted 8 as a nursing student, and that she continued to work effectively with ASL interpreters in her current nursing job at Strong. Thus, Judge Blake found that the accommodation Searls proposed to JHH in 2012 was a reasonable one.
Judge Blake further found that JHH had failed to show that in hiring a full-time ASL interpreter, it would have been forced to reallocate essential job functions. The parties agreed that communicating with patients, family members, and other hospital personnel and monitoring and responding to alarms were essential functions of the Nurse Clinician position. Judge Blake found, quite sensibly, that a nurse's duties with respect to communicating and responding to alarms go beyond hearing what patients are saying and hearing an alarm ringing. Searls would have used her own medical expertise and training when speaking to patients, families, and other hospital personnel, providing care based on her exchanges with patients, and taking the appropriate action in response to an alarm after an interpreter communicated the sound of an alarm visually. Therefore, Judge Blake concluded, providing Searls an ASL interpreter would not have reallocated the essential job functions of communicating with others and responding to alarms from Searls to another employee.
No “Undue Hardship”
JHH still could have prevailed against Searle if it had shown that her requested accommodation, although reasonable, posed an “undue hardship” on JHH. The expense of a reasonable accommodation is a factor in undue hardship analysis. In that regard, Judge Blake found that JHH's overall budget, the Department of Medicine's operational budget, and Halsted 8's operational budget were all relevant.
But in making its undue hardship argument, JHH insisted on focusing solely on the much smaller budget of the Halstead unit rather than on the larger department budget or the much larger institution budget. JHH insisted that its budget for reasonable accommodation was $0. But an employer's budget for reasonable accommodations is an irrelevant factor in assessing undue hardship under the ADA. Otherwise, an employer could budget $0 for reasonable accommodations and thereby always avoid liability under the ADA.
Judge Blake further found that, even if it were true that the salary of a full-time ASL interpreter is twice the salary of a nurse, that in itself does not establish that an ASL interpreter would be an undue hardship. The EEOC's interpretive guidance on its Title I ADA regulations explains that "[s]imply comparing the cost of the accommodation to the salary of the individual with a disability in need of the accommodation will not suffice." Judge Blake faulted JHH for not taking its $1.7 billion budget into account when evaluating the expense of the accommodation. She found particularly persuasive the fact that Strong had no apparent problem providing Searls with an ASL interpreter. Because JHH denied Searls an accommodation that was reasonable and that imposed no evident undue hardship, Judge Blake ruled that Searls had made out a prima facie case of unlawful employment discrimination under Title I of the ADA.
No “Direct Threat”
JHH still could have defeated Searls’ claim if it could have shown that her disability posed a "direct threat" under the ADA. A “direct threat” is as a significant risk to the health or safety of others that cannot be eliminated or acceptably reduced by reasonable accommodation. But JHH’s direct threat defense also failed, because JHH could not show that Searls, when accompanied by an ASL interpreter, would not be able to perform the essential functions of her job, including responding to unexpected phone calls, call bells, and critical patient situations. Judge Blake characterized JHH’s direct threat defense as a post-hoc rationalization: It had not cited patient safety concerns as a reason for rescinding its job offer to Searls in 2012; it only cited the expense of providing her with interpreter services.
JHH's direct threat defense also failed because JHH didn’t base its decision to rescind Searls’ job offer on an individualized assessment of her present ability to safely perform the essential functions of her job—an assessment which the EEOC’s regulations under Title I require. Such an assessment must "be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence" and must consider factors such as: "(1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm." JHH undertook no such individualized assessment of Nurse Searls. It relied instead on stereotypes and generalizations about deafness.
What’s So Surprising about Searls?
It is passing strange when a plaintiff alleging discrimination under Title I of the ADA obtains summary judgement in his or her favor. In fact, it is exceedingly rare that plaintiffs win Title I cases in Federal court at all. The most recent survey conducted by the American Bar Association’s Commission on Mental and Physical Disability Law on Title I litigation in the federal courts found that employees only win these cases 2.6% of the time. (By comparison, the win rate for plaintiffs in employment discrimination cases overall is about 15%; in all other civil cases, it’s about 51%). The win rate in 2009 was the lowest ever recorded by the survey, even though the ADA had been amended in the prior year to expand the scope of disabilities covered by the law. One would hope this execrable statistic merely reflects the fact that most cases under Title I which have merit settle early—and perhaps that it has taken a little time for the federal courts to incorporate into their decision-making Congress’s expansion of the scope of covered disabilities under the ADA in 2008.
Unfortunately for Nurse Searls, it is still possible that the Court of Appeals for the Fourth Circuit (the intermediate federal court serving Maryland) will reverse Judge Blake’s summary judgment ruling against JHH, and that Searls will lose her case yet. Employers are granted reversals in their favor from federal appellate courts about 41% of the time. But for now, attorneys who represent employed health care professionals in claims involving disabilities discrimination can savor a relatively rare plaintiff’s summary judgement win—and deaf health care professionals in Maryland can perhaps feel a little more secure in their employment.
The Law Office of David M. Briglia represents doctors, nurses and other medical professionals in cases involving wrongful termination and wrongful denial of employment on account of disability and other protected characteristics in Maryland and Washington D.C. You can contact the firm here. The article above is for informational purposes only, and is not intended, nor can it be relied upon, as legal advice.
A Short Guide to Federal Laws That Protect Health Care Whistleblowers Against Retaliation
More than 40 different federal laws contain provisions that outlaw retaliation against employees who “blow the whistle” on the misconduct of their employers. Although none of them single out employees of the health care industry for special protection, a number of them are relevant to doctors, nurses, physician assistants, nurse practitioners, billing and coding specialists and other medical and administrative employees of the health care industry.
This overview is intended to help health care whistleblowers identify when they might be victims of illegal retaliation in the workplace. It speaks at a high level, and thus does not provide an exhaustive explanation of every fact that would need to be present for an employee to make out a successful claim of retaliation under any of the laws discussed. It cannot be relied on as legal advice. Most a the laws discussed below require the filing of an administrative complaint before the filing of a lawsuit in court. Some require a plaintiff to try his or her complaint before an administrative law judge. Most prescribe a very short period in which to bring a claim. (In the case of the Occupational Safety and Health Act, as little as 30 days). You need to seek legal counsel, and fast, if you believe you are a victim of illegal retaliation and want to preserve your rights.
False Claims Act (FCA) (31 U.S. Code § 3730)
For the most part, I've organized the laws discussed in this article alphabetically, with one exception: The False Claims Act. This law—first enacted in 1863 to combat fraud by government contractors during the Civil War—is the federal government's primary tool for combating fraud against the government.
The health care industry has become a prime target of the government’s enforcement efforts under the FCA. In 2009, the U.S. Department of Justice (DOJ) and the U.S. Department of Health and Human Services (HHS) created a joint task force—the Health Care Fraud Prevention and Enforcement Action Team (HEAT)—to proactively find and prosecute waste, fraud, and abuse in Medicare and Medicaid. This effort has borne fruit: Of the record-setting $5.69 billion in settlements and judgments from civil cases involving fraud and false claims brought by the DOJ in FY 2014 under the FCA, recoveries from false claims against federal health care programs, including Medicare and Medicaid, accounted for nearly half of that amount.
Common false claim schemes in the health care industry that violate the FCA include:
The FCA provides whistleblowers the opportunity to file suit on behalf of the United States against violators of the FCA. If the government intervenes in the case and recovers money through a settlement or a trial, the whistleblower (or "relator") is entitled under the FCA to 15 percent to 25 percent of the recovery. If the government doesn't intervene in the case and the whistleblower chooses to pursue it anyway, the reward is between 25 and 30 percent of the recovery.
The FCA creates a cause of action for any employee, contractor, or agent who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by that person (or others associated with whom that person is associated) in furtherance of a qui tam action or other efforts to stop one or more violations of the FCA. Making an internal complaint to your employer regarding suspected violations of the FCA should be enough to obtain protection.
Relief available to an aggrieved whistleblower includes reinstatement with the same seniority status that the whistleblower would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys' fees.
Time to file a complaint: 3 years.
Age Discrimination in Employment Act (ADEA); 29 U.S.C. § 623(d)
The ADEA protects people who are 40 or older from discrimination in employment because of age. It also prohibits an employer from discriminating against an employee or applicant for employment because that individual has opposed a discriminatory practice made unlawful by the ADEA, or because the individual has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under the ADEA. The ADEA also prohibits such actions when committed by an employment agency against any individual, and by a labor organization against a member or applicant for membership.
Time to file complaint: 180 days.
Americans with Disabilities Act (ADA); 42 U.S.C. § 12203(a)
The ADA requires that employers reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer's business. The ADA also prohibits discrimination against any individual because he or she has opposed any act or practice made unlawful by the ADA or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the ADA.
Time to file a complaint: 180 days.
Employee Polygraph Protection Act (EPPA); 29 U.S.C. § 2002(4)
The EPPA generally prevents employers from using lie detector tests for prescreening or during the course of employment (with some exceptions for certain industries and federal, state and local government). The EPPA prohibits an employer from discharging or otherwise discriminating against an employee or prospective employee because such individual (1) has filed a complaint, or instituted or caused to be instituted any proceeding under or related to the EPPA; (2) has testified or is about to testify in any such proceeding; or (3) has exercised any right afforded by the EPPA.
Time to file a complaint: 3 years.
Employee Retirement Income Security Act (ERISA); 29 U.S.C. § 1140
ERISA prohibits any person from discharging, fining, suspending, expelling, disciplining, or discriminating against a participant or beneficiary for (1) exercising any right to which he or she is entitled under the provisions of an employee benefit plan, section 1201 of title 29, U.S. Code, or the Welfare and Pension Plans Disclosure Act; or (2) giving information, testifying, or being about to testify in any inquiry or proceeding related to ERISA or the Welfare and Pension Plans Disclosure Act. In the case of a multiemployer plan, it is unlawful for the plan sponsor or any other person to discriminate against any contributing employer for exercising rights under ERISA or for giving information or testifying in any inquiry or proceeding before Congress related to ERISA.
Time to file a complaint: Depends. ERISA doesn’t provide a limitations period for retaliation claims, so a court will typically the state law limitations period corresponding to wrongful termination or retaliatory discharge, and sometimes the limitations period that benefits plan sponsors include in their benefit plan documents and summary plan descriptions.
Fair Labor Standards Act (FLSA) 29 U.S.C. § 215(a)(3); 29 U.S.C. § 218(c)(a)
The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. The FLSA prohibits an employer from discharging or otherwise discriminating against an employee because such employee filed a complaint or instituted any proceeding under the statute, testified or is about to testify in any such proceeding, or served or is about to serve on an industry committee.
The Patient Protection and Affordable Care Act (ACA) amended the Fair Labor Standards Act (FLSA) to provide additional protections for employees. Under the new section 18(c) of the FLSA, an employer is prohibited from discharging or otherwise discriminating against any employee because he or she has (1) received a premium tax credit or cost-sharing subsidy under the ACA; (2) provided, caused to be provided, or is about to provide or cause to be provided to the employer, the federal government, or a state attorney general information related to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of title 29 of the U.S. Code (which contains federal employment and labor laws); (3) testified or is about to testify in a proceeding concerning such a violation; (4) assisted or participated in, or is about to assist or participate in, such a proceeding; or (5) objected to, or refused to participate in any activity, policy, practice, or assigned task that employee reasonably believed to be in violation or any provision of title 29 of the U.S. Code, or any order, rule, regulation, standard, or ban under such title. 29 U.S.C. § 218c(a).
Health care professionals are usually exempt from the protections of the FLSA under the executive, administrative or professional exemptions that exist under Section 13(a)(1) and regulations promulgated by the U.S. Department of Labor—but not always. For example, non-physician medical professionals who are paid by the hour rather than paid a salary may be entitled to overtime wages under the FLSA.
Time to file a complaint: 2 years; 3 years for a “willful” violation; for section 18 (c) violations, 180 days.
Family and Medical Leave Act (FMLA); 29 U.S.C. § 2615
The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. The FMLA prohibits an employer from discharging or otherwise discriminating against any individual because he or she (1) has opposed any practice made unlawful by the FMLA; (2) has filed a charge, or instituted or caused to be instituted any proceeding under or related to the FMLA; (3) has given or is about to give any information in connection with any inquiry or proceeding related to any right provided under the FMLA; or (4) has testified or is about to testify in any inquiry or proceeding related to any right provided under the FMLA.
Time to file a complaint: 2 years; 3 years for a “willful” violation.
Genetic Information Nondiscrimination Act (GINA); 42 U.S. Code § 2000ff–6
GINA prohibits group health plans and health insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic predisposition to developing a disease in the future. It also prohibits employers from using individuals' genetic information when making hiring, firing, job placement, or promotion decisions. GINA also outlaws discrimination against any individual who has opposed any act or practice made unlawful by GINA or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing relating to GINA.
Time to file a complaint: 180 days.
National Labor Relations Act (NLRA); 29 U.S.C. § 158(a)(4)
The NLRA is a foundational statute of US labor law which guarantees basic rights of private sector employees to organize into trade unions, engage in collective bargaining for better terms and conditions at work, and take collective action including strike if necessary. The act also created the National Labor Relations Board, which conducts elections that can require employers to engage in collective bargaining with labor unions.
The Act does not apply to workers who are covered by the Railway Labor Act, agricultural employees, domestic employees, supervisors, federal, state or local government workers, independent contractors and some close relatives of individual employers. Employed physicians are not barred from engaging in protected collective bargaining activities under the NLRA, but the fact that managers and supervisors are not regarded as “employees” under the NLRA often prevents physicians from enjoying its protections.
Under section 8(a)(4) of the NLRA, it is an unfair labor practice for an employer to discharge or otherwise discriminate against an employee because he or she has filed charges or given testimony under the NLRA.
Time to file a complaint: 180 days.
Occupational Safety and Health Act of 1970 (OSH Act); 29 U.S.C. §660(c)
The OSH Act prohibits an employer from discharging or in any manner discriminating against an employee because such employee filed a complaint or instituted or caused to be instituted a proceeding under the OSH Act, or has testified or is about to testify in any such proceeding, or exercises any right or protection afforded by the OSH Act.
OSHA has issued standards for many common workplace health and safety risks in healthcare facilities, including blood-borne pathogens, ionizing radiation, and laboratory chemicals. In 2013, U.S. hospitals recorded nearly 58,000 work-related injuries and illnesses, amounting to 6.4 work-related injuries and illnesses for every 100 full-time employees—almost twice as high as the overall rate for private industry. In the summer of 2015, OSHA announced that it is expanding its use of enforcement resources in hospitals and nursing homes to focus on musculoskeletal disorders related to patient or resident handling, blood-borne pathogens, workplace violence, tuberculosis and slips, trips and falls.
Time to file a complaint: 30 days.
Title VII of the Civil Rights Act of 1964 (Title VII); 42 U.S.C. § 2000e-3
Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. Title VII prohibits an employer from discriminating against any employee or applicant for employment because he or she has (1) opposed any practice made an unlawful employment practice by Title VII; or (2) made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII. Title VII also prohibits such actions when committed by an employment agency or joint labor-management committee against an individual, or labor organization against a member or applicant for membership.
Time to file a complaint: 180 days (up to 300 days in some states, including Maryland and the District of Columbia).
Sarbanes-Oxley Act of 2002 (SOX); 18 U.S.C. § 1514A
This statute will only apply if you work for a health care provider that is traded on a stock exchange, or is owned by, or owned in common with, a publicly-traded company. SOX prohibits publicly traded companies, including any subsidiaries or affiliates whose financial information is included in the consolidated financial statements of such companies, and nationally recognized statistical rating organizations from discharging, demoting, suspending, threatening, harassing, or in any other manner discriminating against an employee because such employee provided information, caused information to be provided, otherwise assisted in an investigation, or filed, testified, or participated in a proceeding regarding any conduct that the employee reasonably believes is a violation of SOX, any SEC rule or regulation, or any federal statute relating to fraud against shareholders, when the information or assistance is provided to a federal regulatory or law enforcement agency, any Member or committee of Congress, or a person with supervisory authority over the employee or investigative authority for the employer, regarding any violation of 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 1344 ( bank fraud), 1348 (securities fraud against shareholders), or any SEC rule or regulation, or any other federal law regarding fraud against shareholders.
Time to file a complaint: 180 days.
Uniformed Services Employment and Reemployment Rights Act (USERRA); 38 U.S.C. § 4311(b)
The purpose of USERRA is to protect civilian job rights and benefits for veterans, members of reserve components, and individuals activated by the President of the United States to provide federal response for national emergencies. USERRA prohibits an employer from discriminating or taking any adverse employment action against any person because such person has (1) taken an action to enforce a protection afforded by the statute; (2) testified or otherwise made a statement in or in connection with any proceeding under USERRA; (3) has assisted or otherwise participated in an investigation under USERRA; or (4) has exercised a right provided by USERRA.
Time to file a complaint: No limit.