UPDATE: Feb. 25, 2021: The U.S. Supreme Court declined to review D'Onofrio, leaving the 11th Circuit's ruling in tact.
- A jury incorrectly awarded a former Costco employee $775,000 in a disability accommodation lawsuit, the 11th U.S. Circuit Court of Appeals held (D'Onofrio v. Costco Wholesale Corporation, No. 19-10663 (July 6, 2020)).
- The employee, a deaf individual who worked successfully for Costco for years and communicated by reading lips, requested the company provide deaf culture training after she began having trouble with a new manager. The employer conducted the training and also implemented a video relay service. She sued, alleging it failed to accommodate her disability, in violation of state law. Among other things, she said, the training resulted in her being assigned three individuals with whom she was supposed to primarily communicate.
- A jury ruled in her favor, awarding her $750,000 for emotional pain and mental anguish, and $25,000 in punitive damages. The trial court, however, rejected the verdict and the 11th Circuit agreed. "We cannot hold that an employer fails to reasonably accommodate a deaf employee when it provides her with on-demand access to live sign-language interpreters at two, convenient locations within her place of work; when it goes further to provide on-site person interpreters for larger, group meetings; when it arranges a thorough training session on deaf culture, pursuant to the plaintiff's request; and when the plaintiff's general manager — the supervisor who was the sole subject of her sole complaint — resolves to improve his relationship with the plaintiff by attending multiple, one-on-one training sessions," it said. In fact, it concluded, the plaintiff "cannot point to 'a specific instance in which she needed an accommodation and was denied one,'" it said, citing earlier circuit precedent.
The Americans with Disabilities Act (ADA) and similar state laws require that an employer provide a reasonable accommodation if needed to enable an employee with a disability to perform their essential job functions.
Generally, it's up to the employee to put the employer on notice that they're having difficulty performing their job because of an impairment, the U.S. Equal Employment Opportunity Commission has said in guidance. That then triggers the interactive process, an informal back-and-forth discussion that the law favors.
Employees are not entitled to their accommodation of choice, only an effective, reasonable one, courts say. Once an accommodation is supplied, employment experts recommend that HR or a manager check in at regular intervals to ensure the change is working well for the employee. Communication is key, when it comes to the interactive process; "keep that door open so you can go back and change it if it's not working out," Lara C. de Leon, now a partner at Constangy, told attendees at a 2019 conference.
Additionally, thorough documentation of both the interactive process and all accommodation attempts can serve an employer well should an issue reach litigation, employment attorneys say.