A deaf worker whose first and primary language is American Sign Language (ASL) struggled to understand written and spoken English. A court had to decide whether, by not providing an ASL interpreter for certain staff meetings, disciplinary sessions, and training, his employer had failed to reasonably accommodate his disability.
“Carlos,” who has been deaf since birth, worked as a junior clerk in the accounts payable division of a UPS facility in Gardena, California, from 2001 until 2009. His supervisors were aware of his limited English proficiency.
Although Carlos was able to perform his job duties without the assistance of an ASL interpreter, he had trouble comprehending the company’s sexual harassment policy, completing job training, and understanding discussions during weekly department and monthly division meetings.
During meetings, his direct supervisor took notes in English—covering only the main points of the meeting—and later emailed them to Carlos.
Carlos did not understand at least some of the notes, and he did not like getting the information after the meeting, because he was unable to ask questions or share his own ideas with co-workers.
On many occasions from 2002 through 2005, he requested that the company provide an ASL interpreter at meetings—or at least a contemporaneous record of the meetings. So, the company had an employee sit with Carlos and write out notes during the meeting. However, the employee was unable to write everything down, and Carlos did not understand some of what was written.
Carlos stopped attending the weekly meetings after April 2005. In July 2006, UPS started regularly providing an ASL interpreter for monthly meetings.
The company provided an interpreter for a March 2007 meeting between Carlos and HR, during which he requested an interpreter at all team meetings that lasted more than 15 minutes. He reiterated the fact that he had trouble understanding some written communications.
Although his supervisors regularly instructed him to use an English-language dictionary to look up words he did not understand, that was not an effective remedy for him.
During his first few years of employment with UPS, his supervisors repeatedly recommended that he take training in Microsoft Excel® to improve his skills. In April 2005, he told his supervisors that he could not read the online training program for Excel. Two years passed before UPS provided an ASL interpreter to help Carlos complete Excel training.
After an April 2005 altercation in the lunchroom in which Carlos used “an inappropriate word and made an inappropriate gesture” to co-workers, an HR supervisor met with him and an ASL interpreter to discuss the matter.
In a follow-up meeting without an interpreter, he received a written warning, but he did not understand the written warning until a subsequent meeting with HR and an ASL interpreter.
The EEOC filed a complaint, alleging that UPS had failed to reasonably accommodate Carlos’ deafness under the Americans with Disabilities Act (ADA). However, a district court sided with the company. The EEOC appealed to the U.S. Court of Appeals for the Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
What the Court Said
The appeals court reversed the decision. Given the company’s knowledge of Carlos’ limited proficiency in written English, the court said questions remained about whether the company’s accommodation of providing agendas, contemporaneous notes, and written summaries of meetings enabled Carlos to “enjoy the benefits and privileges of attending and participating in the departmental meetings” and whether the company knew or should have known that those accommodations were ineffective for Carlos.
In addition, the court pointed to the delay in providing an ASL interpreter to help Carlos complete Excel training and to questions about whether UPS had done enough to ensure that he understood the company’s Anti-Harassment Policy.
U.S. Equal Employment Opportunity Commission v. UPS Supply Chain Solutions (No. 08-56874) (U.S. Court of Appeals, 9th Cir., 8/27/10)
Train supervisors about providing effective accommodations. The court also noted that “… an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers, but an employer cannot satisfy its obligations under the ADA by providing an ineffective modification.”
Make sure employees understand training and team meeting topics. Because of his limited proficiency in English, Carlos missed information during weekly meetings about new HR rules, safety regulations, the company’s code of business conduct, and more.