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case involving a deaf nurse who was offered a job by Johns Hopkins Hospital (JHH) in Baltimore, only to have her offer rescinded after JHH decided it would be too expensive to provide her with the American Sign Language (ASL) interpreter she requested as an accommodation.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.